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JOHN MARSHALL 
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Duke University 
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TEXTBOOK EDITION 


THE CHRONICLES 
OF AMERICA SERIES 
ALLEN JOHNSON 
EDITOR 
GERHARD R. LOMER 


CHARLES W. JEFFERYS 
ASSISTANT EDITORS 


JOHN MARSHALL 
AND THE CONSTITUTION 


.A CHRONICLE OF 
THE SUPREME COURT 
BY EDWARD S. CORWIN 


NEW HAVEN: YALE UNIVERSITY PRESS 
TORONTO: GLASGOW, BROOK & CO. 
LONDON: HUMPHREY MILFORD 

' OXFORD UNIVERSITY PRESS 


Copyright, 1919, by Yale University Press 


PRINTED IN THE UNITED STATES OF AMERICA 


iI: 


S660 

Vv. /6 

CONTENTS C23 

THE ESTABLISHMENT OF THE NATIONAL 

JUDICIARY Page 1 
MARSHALL’S EARLY YEARS ey 
JEFFERSON’S WAR ON THE JUDICIARY SS, 08 
THE TRIAL OF AARON BURR RSG 
THE TENETS OF NATIONALISM “ 121 
THE SANCTITY OF CONTRACTS “< 147 
THE MENACE OF STATE RIGHTS SARS 
AMONG FRIENDS AND NEIGHBORS 198 
EPILOGUE <<  Q9A 
BIBLIOGRAPHICAL NOTE < -233 
INDEX NS EY 


JOHN MARSHALL AND THE 
CONSTITUTION 


CHAPTER I 
THE ESTABLISHMENT OF THE NATIONAL JUDICIARY 


THE monarch of ancient times mingled the func- 
tions of priest and judge. It is therefore not alto- 
gether surprising that even today a judicial system 
should be stamped with a certain resemblance to 
an ecclesiastical hierarchy. If the Church of the 
Middle Ages was “an army encamped on the soil of 
Christendom, with its outposts everywhere, subject 
to the most efficient discipline, animated with a 
common purpose, every soldier panoplied with in- 
violability and armed with the tremendous weapons 
which slew the soul,” the same words, slightly 
varied, may be applied to the Federal Judiciary 
created by the American Constitution. The Judi- 
ciary of the United States, though numerically not 


2 MARSHALL AND THE CONSTITUTION 


a large body, reaches through its process every 
part of the nation; its ascendancy is primarily a 
moral one; it is kept in conformity with final au- 
thority by the machinery of appeal; it is “ani- 
mated with a common purpose”’; its members are 
“‘panoplied”’ with what is practically a life tenure 


« 


of their posts; and it is “armed with the tremen- 
dous weapons” which slay legislation. And if the 
voice of the Church was the voice o1 God, so the 
voice of the Court is the voice of the American 
people as this is recorded in the Constitution. 
The Hildebrand of American constitutionalism 
is John Marshall. The contest carried on by the 
greatest of the Chief Justices for the principles to- 
day associated with his name is very like that waged 
by the greatest of the Popes for the supremacy of the 
Papacy. Both fought with intellectual weapons. 
Both addressed their appeal to the minds and hearts 
of men. Both died before the triumph of their re- 
spective causes and amid circumstances of great dis- 
couragement. Both worked through and for great 
institutions which preceded them and which have 
survived them. And, asthe achievements of Hilde- 
brand cannot be justly appreciated without some 
knowledge of the ecclesiastical system which he did 
so much to develop, neither can the career of John 


THE NATIONAL JUDICIARY 3 


Marshall be understood without some knowledge 
of the organization of the tribunal through which 
he wrought and whose power he did so much to 
exalt. The first chapter in the history of John 
Marshall and his influence upon the laws of the 
land must therefore inevitably deal with the his- 
torical conditions underlying the judicial system of 
which it is the capstone. 

The vital defect of the system of government 
provided by the soon obsolete Articles of Confeder- 
ation lay in the fact that it operated not upon the 
individual citizens of the United States but upon 
the States in their corporate capacities. As a con- 
sequence the prescribed duties of any law passed 
by Congress in pursuance of powers derived from 
the Articles of Confederation could not be enforced. 
Theoretically, perhaps, Congress had the right to 
coerce the States to perform their duties; at any 
rate, a Congressional Committee headed by Madi- 
son so decided at the very moment (1781) when 
the Articles were going into effect. But practically 
such a course of coercion, requiring in the end the 
exercise of military power, was out of the ques- 
tion. Whence were to come the forces for mili- 
tary operations against recalcitrant States? From 
sister States which had themselves neglected their 


4 MARSHALL AND THE CONSTITUTION 


constitutional duties on various occasions? The 
history of the German Empire has demonstrated 
that the principle of state coercion is entirely feasi- 
ble when a single powerful State dominates the 
rest of the confederation. But the Confederation 
of 1781 possessed no such giant member; it ap- 
proximated a union of equals, and in theory it was 
entirely such.’ 

In the Federal Convention of 1787 the idea of 
state coercion required little discussion; for the 


t By the Articles of Confederation Congress itself was made “the 
last resort of all disputes and differences . . . between two or more 
States concerning boundary, jurisdiction, or any other cause what- 
ever.’ It was also authorized to appoint “courts for the trial of pira- 
cies and felonies committed on the high seas” and “for receiving and 
determining finally appeals in all cases of capture.”” But even before 
the Articles had gone into operation, Congress had, as early as 1779, 
established a tribunal for such appeals, the old Court of Appeals in 
Cases of Capture. Thus at the very outset, and at a time when the 
doctrine of state sovereignty was dominant, the practice of appeals 
from state courts to a supreme national tribunal was employed, albeit 
within a restricted sphere. Yet it is less easy to admit that the Court 
of Appeals was, as has been contended by one distinguished authority, 
“not simply the predecessor but one of the origins of the Supreme 
Court of the United States.”” The Supreme Court is the creation of 
the Constitution itself; it is the final interpreter of the law in every 
field of national power; and its decrees are carried into effect by the 
force and authority of the Government of which it is one of the three 
coordinate branches. That earlier tribunal, the Court of Appeals in 
Cases of Capture, was, on the other hand, a purely legislative creation; 
its jurisdiction was confined to a single field, and that of importance 
only in time of war; and the enforcement of its decisions rested with 
the state governments. 


« 


THE NATIONAL JUDICIARY 5 


members were soon convinced that it involved an 
impracticable, illogical, and unjust principle. The 
prevailing view was voiced by Oliver Ellsworth 
before the Connecticut ratifying convention: ““We 
see how necessary for Union is a coercive principle. 
No man pretends to the contrary... . The only 
question is, shall it be a coercion of law or a coer- 
cion of arms? There is no other possible alterna- 
tive. Where will those who oppose a coercion of 
law come out? . . . A necessary consequence of 
their principles is a war of the States one against 
the other. J am for coercion by law, that coercion 
which acts only upon delinquent individuals.” If 
anything, these words somewhat exaggerate the 
immunity of the States from direct control by 
the National Government, for, as James Madison 
pointed out in the Federalist, “in several cases . . . 
they [the States] must be viewed and proceeded 
against in their collective capacities.» Yet Ells- 
worth stated correctly the controlling principle of 
the new government: it was to operate upon in- 
dividuals through laws interpreted and enforced 
by its own courts 

A Federal Judiciary was provided for in every 
plan offered on the floor of the Federal Convention. 
There was alsoa fairly general agreement among the 


6 MARSHALL AND THE CONSTITUTION 


members on the question of “judicial independ- 
ence.”’ Indeed, most of the state constitutions 
already made the tenure of the principal judges 
dependent upon their good behavior, though in 
some cases judges were removable, as in England, 
upon the joint address of the two Houses of the 
Legislature. That the Federal judges should be 
similarly removable by the President upon the 
application of the Senate and House of Repre- 
sentatives was proposed late in the Convention 
by Dickinson of Delaware, but the suggestion re- 
ceived the vote of only one State. In the end it 
was all but unanimously agreed that the Federal 
judges should be removable only upon conviction 
following impeachment. 

But, while the Convention was in accord on this 
matter, another question, that of the organization 
of the new judiciary, evoked the sharpest disagree- 
ment among its members. All believed that 
there must be a national Supreme Court to im- 
press upon the national statutes a construction 
that should be uniformly binding throughout the 
country; but they disagreed upon the question 
whether there should be inferior national courts. 
Rutledge of South Carolina wanted the state courts 
to be used as national courts of the first instance 


THE NATIONAL JUDICIARY 7 


and argued that a right of appeal to the supreme 
national tribunal would be quite sufficient “to 
secure the national rights and uniformity of judg- 
ment.” But Madison pointed out that such an 
arrangement would cause appeals to be multi- 
plied most oppressively and that, furthermore, it 
would provide no remedy for improper verdicts re- 
sulting from local prejudices. A compromise was 
reached by leaving the question to the discretion of 
Congress. The champions of local liberties, how- 
ever, both at Philadelphia and in the state conven- 
tions continued to the end to urge that Congress 
should utilize the state courts as national tribunals 
of the first instance. The significance of this plea 
should be emphasized because the time was to come 
when the same interest would argue that for the 
Supreme Court to take appeals from the state courts 
on any account was a humiliation to the latter and 
an utter disparagement of State Rights. 

Even more important than the relation of the 
Supreme Court to the judicial systems of the States 
was the question of its relation to the Constitution 
as a governing instrument. Though the idea that 
courts were entitled to pronounce on the constitu- 
tionality of legislative acts had received counte- 
nance in a few dicta in some of the States and 


8 MARSHALL AND THE CONSTITUTION 


perhaps in one or two decisions, this idea was still 
at best in 1787 but the germ of a possible institu- 
tion. It is not surprising, therefore, that no such 
doctrine found place in the resolutions of the Vir- 
ginia plan which came before the Convention. By 
the sixth resolution of this plan the national legis- 
lature was to have the power of negativing all 
state laws which, in its opinion, contravened “‘the 
Articles of Union, or any treaty subsisting under 
the authority of the Union,” and by the eighth 


€ 


resolution ‘‘a convenient number of the national 
judiciary”? were to be associated with the Execu- 
tive, “‘with authority to examine every act of the 
national legislature before it shall operate, and 
every act of a particular legislature before a nega- 
tive thereon shall be final” and to impose a qualified 
veto in either case. 

But, as discussion in the Convention proceeded, 
three principles obtained clearer and clearer recog- 
nition, if not from all its members, certainly from 
the great majority of them: first, that the Consti- 
tution is law, in the sense of being enforeible by 
courts; secondly, that it is supreme law, with which 
ordinary legislation must be in harmony to be valid; 
and thirdly —a principle deducible from the doc- 
trine of the separation of powers — that, while the 


THE NATIONAL JUDICIARY 9 


function of making new law belongs to the legis- 
lative branch of the Government, that of expound- 
ing the standing law, of which the Constitution 
would be part and parcel, belongs to the Judiciary. 
The final disposition of the question of insuring the 
conformity of ordinary legislation to the Constitu- 
tion turned to no small extent on the recognition of 
these three great principles. 

The proposal to endow Congress with the power 
to negative state legislation having been rejected 
by the Convention, Luther Martin of Maryland 
moved that “the legislative acts of the United 
States made in virtue and in pursuance of the 
Articles of Union, and all treaties made or rati- 
fied under the authority of the United States, sliall 
be the supreme law of the respective States, and 
the judiciaries of the several States shall be bound 
thereby in their decisions, anything in the respec- 
tive laws of the individual States to the contrary 
notwithstanding.”” The motion was agreed to 
without a dissenting voice and, with some slight 
changes, became Article VIII of the report of the 
Committee of Detail of the 7th of August, which in 
turn became “‘the linch-pin of the Constitution.’’? 
Then, on the 27th of August, it was agreed that 

« Article VI, paragraph 2. 


10 MARSHALL AND THE CONSTITUTION 


“the jurisdiction of the Supreme Court” should 
‘extend to all cases arising under the laws passed 
by the Legislature of the United States,” whether, 
that is, such laws should be in pursuance of the 
Constitution or not. The foundation was thus 
laid for the Supreme Court to claim the right to 
review any state decision challenging on consti- 
tutional grounds the validity of any act of Con- 
gress. Presently this foundation was broadened 
by the substitution of the phrase “judicial power 
of the United States” for the phrase “jurisdic- 
tion of the Supreme Court,”’ and also by the in- 
sertion of the words “this Constitution” and 
“the” before the word “laws” in what ultimate- 
ly became Article III of the Constitution. The 
implications of the phraseology of this part of the 
Constitution are therefore significant: 


Section I. The judicial power of the United States 
shall be vested in one Supreme Court, and in such in- 
ferior courts as the Congress may from time to time or- 
dain and establish. The judges, both of the Supreme 
and inferior courts, shall hold their offices during good 
behavior, and shall at stated times receive for their 
services a compensation which shall not be diminished 
during their continuance in office. 

Section II. 1. The judicial power shall extend to all 
cases in law and equity arising under this Constitution, 


THE NATIONAL JUDICIARY 11 


the laws of the United States, and treaties made, or 
which shall be made, under their authority; to all cases 
affecting ambassadors, other public ministers, and con- 
suls; to all cases of admiralty and maritime jurisdiction; 
to controversies to which the United States shall be a 
party; to controversies between two or more States, be- 
tween a State and citizens of another State, between 
citizens of different States, between citizens of the same 
State claiming lands under grants of different States, 
and between a State, or the citizens thereof, and foreign 
states, citizens, or subjects. 


Such, then, is the verbal basis of the power of the 
courts, and particularly of the Supreme Court, to 
review the legislation of any State, with reference 
to the Constitution, to acts of Congress, or to trea- 
ties of the United States. Nor can there be much 
doubt that the members of the Convention were 
also substantially agreed that the Supreme Court 
was endowed with the further right to pass upon 
the constitutionality of acts of Congress. The 
available evidence strictly contemporaneous with 
the framing and ratification of the Constitution 
shows us seventeen of the fifty-five members of the 
Convention asserting the existence of this preroga- 
tive in unmistakable terms and only three using 
language that can be construed to the contrary. 
More striking than that, however. is the fact that 


12 MARSHALL AND THE CONSTITUTION 


these seventeen names include fully three-fourths 
of the leaders of the Convention, four of the five 
members of the Committee of Detail which drafted 
the Constitution, and four of the five members of 
the Committee of Style which gave the Constitu- 
tion its final form. And these were precisely the 
members who expressed themselves on all the in- 
teresting and vital subjects before the Convention, 
because they were its statesmen and articulate 
members.’ 

No part of the Constitution has realized the 
hopes of its framers more brilliantly than has 
Article III, where the judicial power of the United 
States is defined and organized, and no part has 
shown itself to be more adaptable to the developing 
needs of a growing nation. Nor is the reason ob- 
scure: no part came from the hands of the fram- 
ers in more fragmentary shape or left more to the 
discretion of Congress and the Court. 

Congress is thus placed under constitutional obli- 
gation to establish one Supreme Court, but the size 
of that Court is for Congress itself to determine, as 
well as whether there shall be any inferior Federal 


t The entries under the names of these members in the Index to 
Max Farrand’s Records of the Federal Convention occupy fully thirty 
columns, as compared with fewer than half as many columns under 
the names of all remaining members. 


THE NATIONAL JUDICIARY 13 


Courts at all. What, it may be asked, is the sig- 
nificance of the word “shall” in Section II? Is 
it merely permissive or is it mandatory? And, in 
either event, when does a case arise under the Con- 
stitution or the laws of the United States? Here, 
too, are questions which are left for Congress in 
the first instance and for the Supreme Court in the 
last. Further, the Supreme Court is given “original 
jurisdiction”’ in certain specified cases and “‘appel- 
late jurisdiction”’ in all others — subject, however, 
to “such exceptions and under such regulations as 
the Congress shall make.”’ Finally, the whole ques- 
tion of the relation of the national courts to the 
state judiciaries, though it is elaborately discussed 
by Alexander Hamilton in the Federalist, is left by 
the Constitution itself to the practically undirected 
wisdom of Congress, in the exercise of its power to 
pass “‘all laws which shall be necessary and proper 


227 


for carrying into execution’’' its own powers and 
those of the other departments of the Government. 

Almost the first official act of the Senate of the 
United States, after it had perfected its own organ- 
ization, was the appointment of a committee “to 
bring in a bill for organizing the judiciary of the 
United States.’ This committee consisted of eight 


t Article I, section vu, 18. 


14 MARSHALL AND THE CONSTITUTION 


members, five of whom, including Oliver Ellsworth, 
its chairman, had been members of the Federal 
Convention. To Ellsworth is to be credited largely 
the authorship of the great Judiciary Act of Sep- 
tember 24, 1789, the essential features of which still 
remain after 130 years in full force and effect. 
This famous measure created a chief justice- 
ship and five associate justiceships for the Supreme 
Court; fifteen District Courts, one for each State of 
the Union and for each of the two Territories, Ken- 
tucky and Ohio; and, to stand between these, three 
Circuit Courts consisting of two Supreme Court 
justices and the local district judge. The “‘cases”’ 
and “controversies” comprehended by the Act fall 
into three groups: first, those brought to enforce 
the national laws and treaties, original jurisdiction 
of which was assigned to the District Courts; sec- 
ondly, controversies between citizens of different 
States’; lastly, cases brought originally under a 
state law and in a State Court but finally coming 
to involve some claim of right based on the Na- 
tional Constitution, laws, or treaties. For these 
the twenty-fifth section of the Act provided that, 


t Where the national jurisdiction was extended to these in the 
interest of providing an impartial tribunal, it was given to the Circuit 
Courts. 


THE NATIONAL JUDICIARY 15 


where the decision of the highest State Court com- 
petent under the state law to pass upon the case 
was adverse to the claim thus set up, an appeal on 
the issue should lie to the Supreme Court. This 
twenty-fifth section received the hearty approval of 
the champions of State Rights, though later on it 
came to be to them an object of fiercest resentment. 
In the Senate, as in the Convention, the artillery of 
these gentlemen was trained upon the proposed in- 
ferior Federal Judiciary, which they pictured as a 
sort of Gargantua ready at any moment “‘to swallow 
up the state courts.” 

The first nominations for the Supreme Court 
were sent in by Washington two days after he had 
signed the Judiciary Act. As finally constituted, 
the original bench consisted of John Jay of New 
York as Chief Justice, and of John Rutledge of 
South Carolina, William Cushing of Massachusetts, 
John Blair of Virginia, James Wilson of Pennsyl- 
vania, and James Iredell of North Carolina as Asso- 
ciate Justices. All were known to be champions of 
the Constitution, three had been members of the 
Federal Convention, four had held high judicial 
offices in their home States, and all but Jay were on 
record as advocates of the principle of judicial re- 
view. Jay was one of the authors of the Federalist, 


16 MARSHALL AND THE CONSTITUTION 


had achieved a great diplomatic reputation in thene- 
gotiations of 1782, and possessed the political back- 
ing of the powerful Livingston family of New York. 

The Judiciary Act provided for two terms of 
court annually, one commencing the first Monday 
of February, and the other on the first Monday of 
August. On February 2, 1790, the Court opened 
its doors for the first time in an upper room of the 
Exchange in New York City. Up to the February 
term of 1793 it had heard but five cases, and until 
the accession of Marshall it had decided but fifty- 
five. The justices were largely occupied in what 
one of them described as their “‘post-boy duties,” 
that is, in riding their circuits. At first the justices 
rode in pairs and were assigned to particular cir- 
cuits. As a result of this practice, the Southern 
justices were forced each year to make two trips of 
nearly two thousand miles each and, in order to 
hold court for two weeks, often passed two months 
onthe road. In 1792, however, Congress changed 
the law to permit the different circuits to be taken 
in turn and by single justices, and in the meantime 
the Court had, in 1791, followed the rest of the 
Government to Philadelphia, a rather more central 
seat. Then, in 1802, the abolition of the August 
term eased the burdens of the justices still more. 


THE NATIONAL JUDICIARY 17 


But of course they still had to put up with bad 
roads, bad inns, and bad judicial quarters or 
sometimes none at all. 

Yet that the life of a Supreme Court justice was 
not altogether one of discomfort is shown by the 
following alluring account of the travels of Justice 
Cushing on circuit: “He traveled over the whole 
of the Union, holding courts in Virginia, the Caro- 
linas, and Georgia. His traveling equipage was a 
four-wheeled phaeton, drawn by a pair of horses, 
which he drove. It was remarkable for its many 
ingenious arrangements (all of his contrivance) for 
carrying books, choice groceries, and other com- 
forts. Mrs. Cushing always accompanied him, 
and generally read aloud while riding. His faith- 
ful servant Prince, a jet-black negro, whose par- 
ents had been slaves in the family and who loved 
his master with unbounded affection, followed.”’? 
Compared with that of a modern judge always 
confronted with a docket of eight or nine hundred 
cases in arrears, Justice Cushing’s lot was perhaps 
uot so unenviable. 

The pioneer work of the Supreme Court in con- 
stitutional interpretation has, for ail but special 


t Flanders, The Lives and Times of the Chief-Justices of the Supreme 
Court, vol. 11. p. 38. 


18 MARSHALL AND THE CONSTITUTION 


students, fallen into something like obscurity owing 
to the luster of Marshall’s achievements and to his 
habit of deciding cases without much reference to 
precedent. But these early labors are by no means 
insignificant, especially since they pointed the way 
to some of Marshall’s most striking decisions. In 
Chisholm vs. Georgia,* which was decided in 1793, 
the Court ruled, in the face of an assurance in the 
Federalist to the contrary, that an individual might 
sue a State; and though this decision was speedily 
disallowed by resentful debtor States by the adop- 
tion of the Eleventh Amendment, its underlying 
premise that, “as to the purposes of the Union, the 
States are not sovereign’ remained untouched; and 
three years later the Court affirmed the supremacy 
of national treaties over conflicting state laws and 
so established a precedent which has never been 
disturbed. Meantime the Supreme Court was 
advancing, though with notable caution, toward 
an assertion of the right to pass upon the constitu- 
tionality of acts of Congress. Thus in 1792, Con- 
gress ordered the judges while on circuit to pass 
upon pension claims, their determinations to be 
reviewable by the Secretary of the Treasury. In 
protests which they filed with the President, the 
12 Dallas, 419. 2 Ware vs. Hylton, 2 2b., 199. 


THE NATIONAL JUDICIARY 19 


judges stated the dilemma which confronted them: 
either the new duty was a judicial one or it was 
not; if the latter, they could not perform it, at least 
not in their capacity as judges; if the former, then 
their decisions were not properly reviewable by an 
executive officer. Washington promptly sent the 
protests to Congress, whereupon some extremists 
raised the cry of impeachment; but the majority 
hastened to amend the Act so as to meet the views 
of the judges.‘ Four years later, in the Carriage 
Tax case,’? the only question argued before the 
Court was that of the validity of a congressional 
excise. Yet as late as 1800 we find Justice Samuel 
Chase of Maryland, who had succeeded Blair in 
1795, expressing skepticism as to the right of the 
Court to disallow acts of Congress on the ground of 
their unconstitutionality, though at the same time 
admitting that the prevailing opinion among bench 
and bar supported the claim. 

The great lack of the Federal Judiciary dur- 
ing these early years, and it eventually proved 
well-nigh fatal, was one of leadership. Jay was 
a satisfactory magistrate, but he was not a great 
force on the Supreme Bench, partly on account 
of his peculiarities of temperament and his ill 


t See 2 Dallas, 409 2 Hylton vs. United States, 3 Dallas. 171. 


A 


20 MARSHALL AND THE CONSTITUTION 


health, and partly because, even before he re- 
signed in 1795 to run for Governor in New York, his 
judicial career had been cut short by an important 
diplomatic assignment to England. His successor, 
Oliver Ellsworth, also suffered from ill health, and 
he too was finally sacrificed on the diplomatic al- 
tar by being sent to France in 1799. During the 
same interval there were also several resignations 
among the associate justices. So, what with its 
shifting personnel, the lack of business, and the 
brief semiannual terms, the Court secured only a 
feeble hold on the imagination of the country. It 
may be thought, no doubt, that judges anxious to 
steer clear of politics did not require leadership in 
the political sense. But the truth of the matter is 
that willy-nilly the Federal Judiciary at this period 
was bound to enter politics, and the only question 
was with what degree of tact and prudence this 
should be done. It was to be to the glory of Mar- 
shall that he recognized this fact perfectly and with 
mingled boldness and caution grasped the leader- 
ship which the circumstances demanded. 

The situation at the beginning was precarious 
enough. While the Constitution was yet far from 
having commended itself to the back country 
democracy, that is, to the bulk of the American 


THE NATIONAL JUDICIARY 21 


people, the normal duties of the lower Federal 
Courts brought the judges into daily contact with 
prevalent prejudices and misconceptions in their 
most aggravated forms. Between 1790 and 1800 
there were two serious uprisings against the new 
Government: the Whisky Rebellion of 1794 and 
Fries’s Rebellion five years later. During the same 
period the popular ferment caused by the French 
Revolution was at its height. Entrusted with the 
execution of the laws, the young Judiciary “was 
necessarily thrust forward to bear the brunt in the 
first instance of all the opposition levied against the 
federal head, ”’ its revenue measures, its commercial 
restrictions, its efforts to enforce neutrality and to 
quell uprisings. In short, it was the point of attri- 
tion between the new system and a suspicious, 
excited populace. 

Then, to make bad matters worse, Congress in 
1798 passed the Sedition Act. ‘Had political discre- 
tion instead of party venom governed the judges, 
it is not unlikely that they would have seized the 
opportunity presented by this measure to declare it 
void and by doing so would have made good their 
censorship of acts of Congress with the approval of 
even the Jeffersonian opposition | Instead, they en- 
forced the Sedition Act, often with gratuitous rigor, 


22 MARSHALL AND THE CONSTITUTION 


while some of them even entertained prosecutions 
under a supposed Common Law of the United States. 
The immediate sequel to their action was the claim 
put forth in the Virginia and Kentucky Resolutions 
that the final authority in interpreting ing the National 
Constitution lay with the local legislatures. i Before © 
the principle of judicial review was supported by a 
single authoritative decision, it had thus become a 
partisan issue!” | 

A few months later Jefferson was elected Presi- 
dent, and the Federalists, seemg themselves about 
to lose control of the Executive and Congress, 
proceeded to take steps to convert the Judiciary 
into an avowedly partisan stronghold. By the 
Act of February 13, 1801, the number of asso- 
ciate justiceships was reduced to four, in the hope 
that the new Administration might in this way 
be excluded from the opportunity of making any 
appointments to the Supreme Bench, the num- 
ber of district judgeships was enlarged by five, 
and six Circuit Courts were created which fur- 
nished places for sixteen more new judges. When 
John Adams, the retiring President, proceeded with 
the aid of the Federalist majority in the Senate 


t See Herman V. Ames, State Documents on Federal Relations. Nos. 
7-15 


THE NATIONAL JUDICIARY 23 


and of his Secretary of State, John Marshall, to 
fill up the new posts with the so-called “midnight 
judges, ’’* the rage and consternation of the Repub- 
lican leaders broke all bounds. The Federal Judi- 
ciary, declared John Randolph, had become “an 
hospital of decayed politicians.”» Others pictured 
the country as reduced, under the weight of “‘super- 
numerary judges” and hosts of attendant lawyers, 
to the condition of Egypt under the Mamelukes. 
Jefferson’s concern went deeper. “They have re- 
tired into the judiciary as a stronghold,” he wrote 
Dickinson. ‘There the remains of Federalism are 
to be preserved and fed from the Treasury, and 
from that battery all the works of Republicanism 
are to be beaten down and destroyed.”’ The Fed- 
eral Judiciary, as a codrdinate and independent 
branch of the Government, was confronted with a 
fight for life! 

Meanwhile, late in November, 1800, Ellsworth 
had resigned, and Adams had begun casting about 
for his successor. First he turned to Jay, who 
declined on the ground that the Court, “under a 
system so defective,’’ would never “obtain the 


t So called because the appointment of some of them was supposed 
to have taken place as late as midnight, or later, of March 3-4, 1801. 
The supposition, however, was without foundation. 


24 MARSHALL AND THE CONSTITUTION 


energy, weight, and dignity which were essential 
to its affording due support to the National Goy- 
ernment, nor acquire the public confidence and 
respect which, as the last resort of the justice of the 


») 


nation, it should possess.”” Adams now bethought 
himself of his Secretary of State and, without pre- 
viously consulting him, on January 20, 1801, sent 
his name to the Senate. A week later the Senate 
ratified the nomination, and on the 4th of Febru- 
ary Marshall accepted the appointment. The task 
despaired of by Jay and abandoned by Ellsworth 


was at last in capable hands. 


’ 


CHAPTER If 
MARSHALL'S EARLY YEARS 


Joun MarsHALu was born on September 24, 1755, 
in Fauquier County, Virginia. Though like Jeffer- 
son he was descended on his mother’s side from the 
Randolphs of Turkey Island, colonial grandees who 
were also progenitors of John Randolph, Edmund 
Randolph, and Robert E. Lee, his father, Thomas 
Marshall, was “‘a planter of narrow fortune” and 
modest lineage and a pioneer. Fauquier was then 
on the frontier, and a few years after John was born 
the family moved still farther westward to a place 
called “The Hollow,” a small depression on the 
eastern slope of the Blue Ridge. The external fur- 
nishings of the boy’s life were extremely primitive, 
a fact which Marshall used later to recall by relat- 
ing that his mother and sisters used thorns for but- 
tons and that hot mush flavored with balm leaf 
was regarded as a very special dish. Neighbors, of 


course, were few and far between, but society was 
25 


26 MARSHALL AND THE CONSTITUTION 


not lacking for all that. As the first of fifteen chil- 
dren, all of whom reached inaturity, John found 
ample opportunity to cultivate that affectionate 
helpfulness and gayety of spirit which in after 
years even enemies accounted one of his most 
notable traits. 

Among the various influences which, during the 
plastic years of boyhood and youth, went to shape 
the outlook of the future Chief Justice high rank 
must be accorded his pioneer life. It is not merely 
that the spirit of the frontier, with its ndependence 
-of precedent and its audacity of initiative, breathes 
through his great constitutional decisions, but also 
‘that in being of the frontier Marshall escaped being 
something else. Had he been born in lowland Vir- 
ginia, he would have imbibed the intense localism 
and individualism of the great plantation, and with 
his turn of mind might well have filled the réle 
of Calhoun instead of that very different réle he 
actually did fill. -There was, indeed, one great 
planter with whom young Marshall was thrown 
into occasional contact, and that was his father’s 
patron and patron saint, Washington. The appeal 
made to the lad’s imagination by the great Virgin- 
ian was deep and abiding. And it goes without 
saying that the horizons suggested by the fame of 


MARSHALL’S EARLY YEARS 27 


Fort Venango and Fort Duquesne were not those 
of seaboard Virginia but of America. 

Many are the great men who have owed their 
debt to a mother’s loving helpfulness and alert 
understanding. Marshall, on the other hand, was 
his father’s child. “‘My father,” he was wont to 
declare in after years, “was a far abler man than 
any of hissons. To him I owe the solid foundations 
of all my success in life.”” What were these solid 
foundations? One was a superb physical constitu- 
tion; another was a taste for intellectual delights; 
and to the upbuilding of both these in his son, 
Thomas Marshall devoted himself with enthusiasm 
and masculine good sense, aided on the one hand 
by a very select library consisting of Shakespeare, 
Milton, Dryden, and Pope, and on the other by the 
ever fresh invitation of the mountainside to health- 
giving sports. 

Pope was the lad’s especial textbook, and we 
are told that he had transcribed the whole of the 
Essay on Man by the time he was twelve and some 
of the Moral Essays as well, besides having “‘com- 
mitted to memory many of the most interesting 
passages of that distinguished poet.” The result 
is to be partially discerned many years later in 
certain tricks of Marshall’s style; but indeed the 


28 MARSHALL AND THE CONSTITUTION 


influence of the great moralist must have penetrated 
far deeper. The Essay on Man filled, we may sur- 
mise, much the same place in the education of the 
first generation of American judges that Herbert 
Spencer’s Social Statics filled in that of the judges 
of a later day. The Essay on Man pictures the uni- 
verse as a species of constitutional monarchy gov- 
erned “not by partial but by general laws”; in 
““man’s imperial race”? this beneficent sway ex- 
presses itself in two principles, “self-love to urge, 
and reason to restrain’’; instructed by reason, self- 
love lies at the basis of all human institutions, the 
state, government, laws, and has “found the pri- 
vate in the public good”’; so, on the whole, justice 
is the inevitable law of life. “‘Whatever is, is 
right.”’ It is interesting to suppose that while 
Marshall was committing to memory the compla- 
cent lines of the Essay on Man, his cousin Jefferson 
may have been deep in the Essay on the Origin 
of Inequality. 

At the age of fourteen Marshall was placed for 
a few months under the tuition of a clergyman 
named Campbell, who taught him the rudiments 
of Latin and introduced him to Livy, Cicero, and 
Horace. A little later the great debate over Amer- 
ican rights burst forth and became with Marshall, 


MARSHALL’S EARLY YEARS 29 


as with so many promising lads of the time, the 
decisive factor in determining his intellectual bent, 
and he now began reading Blackstone. The great 
British orators, however, whose eloquence had so 
much to do, for instance, with shaping Webster’s 
genius, came too late to influence him greatly. 
)The part which the War of Independence had in 
shaping the ideas and the destiny of John Marshall 
was mostimportant. As the news of Lexington and 
Bunker Hill passed the Potomac, he was among the 
first to spring toarms. His services at the siege of 
Norfolk, the battles of Brandywine, Germantown, 
and Monmouth, and his share in the rigors of Valley 
Forge and in the capture of Stony Point, made him 
an American before he had ever had time to become 
a Virginian} As he himself wrote long afterwards: 
“T had grown up at a time when the love of the 
Union and the resistance to Great Britain were 
the inseparable inmates of the same bosom; . . 

(when the maxim ‘United we stand, divided we fall’ 
was the maxim of every orthodox American. And 
J had imbibed these sentiments so thoroughly that 
they constituted a part of my being! I carried them 
with me into the army, where I found myself associ- 
ated with brave men from different States, who were 
risking life and everything valuable in 2 common 


30 MARSHALL AND THE CONSTITUTION 


cause believed by all to be most precious, and where 
I was confirmed in the habit of considering America 
as my country and Congress as my government. ”’ 

Love of country, however, was not the only 
quality which soldiering developed in Marshall. 
The cheerfulness and courage which illuminated 
his patriotism brought him popularity among men. 
Though but a lieutenant, he was presently made 
a deputy judge advocate. In this position he dis- 
played notable talent in adjusting differences be- 
tween officers and men and also became acquainted 
with Washington’s brilliant young secretary, Alex- 
ander Hamilton. 

While still in active service in 1780, Marshall 
attended a course of law lectures given by George 
Wythe at William and Mary College. He owed 
this opportunity to Jefferson, who was then Goy- 
ernor of the State and who had obtained the abo- 
lition of the chair of divinity at the college and 
the introduction of a course in law and another 
in medicine. Whether the future Chief Justice 
was prepared to take full advantage of the oppor- 
tunity thus offered is, however, a question. He 
had just fallen heels over head in love with Mary 
Ambler, whom three years later he married, and 
his notebook seems to show us that his thoughts 


MARSHALL’S EARLY YEARS 31 


were quite as much upon his sweetheart as upon the 
lecturer’s wisdom. 

None the less, as soon as the Courts of Virginia 
reopened, upon the capitulation of Cornwallis, 
Marshall hung out his shingle at Richmond and be- 
gan the practice of his profession. The new capital 
was still hardly more than an outpost on the fron- 
tier, and conditions of living were rude in the ex- 
treme. “The Capitol itself,’ we are told, “was 
an ugly structure — ‘a mere wooden barn’ — on an 
unlovely site at the foot of a hill. The private 
dwellings scattered about were poor, mean, little 
wooden houses.”’ “Main Street was still unpaved. 
deep with dust when dry and so muddy during a 
rainy season that wagons sank up to the axles.” 
It ended in gullies and swamps. ‘Trade, which was 
still in the hands of the British merchants, involved 
for the most part transactions in skins, furs, gin- 
seng, snakeroot, and “dried rattlesnakes — used 
to make a viper broth for consumptive patients.” 
f There was but one church building and attend- 
ance was scanty and infrequent.” Not so, how- 
ever, of Farmicola’s tavern, whither card playing, 
drinking, and ribaldry drew crowds, especially 
when the legislature was in session." | 


Beveridge, vol. 1, pp. 171-73. 


32 MARSHALL AND THE CONSTITUTION 


But there was one institution of which Richmond 
could boast, even in comparison with New York, 
Boston, or Philadelphia, and that was its Bar. 
Randolph, Wickham, Campbell, Call, Pendleton, 
Wythe — these are names whose fame still sur- 
vives wherever the history of the American Bar is 
cherished; and it was with their living bearers that 
young Marshall now entered into competitior. 
The result is somewhat astonishing at first con- 
sideration, for even by the standards of his own 
day, when digests, indices, and the other numerous 
aids which now ease the path of the young attorney 
were generally lacking, his preparation had been 
slight. Several circumstances, however, came to 
his rescue. So soon after the Revolution British 
precedents were naturally rather out of favor, while 
on the other hand many of the questions which 
found their way into the courts were those peculiar 
to a new country and so were without applicable 
precedents for their solution. What was chiefly 
demanded of an attorney in this situation was a 
capacity for attention, the ability to analyze an 
opponent’s argument, and a discerning eye for 
fundamental issues. Competent observers soon 
made the discovery that young Marshall possessed 
all these faculties to a marked degree and, what was 


MARSHALL’S EARLY YEARS 33 


just as important, his modesty made recognition by 
his elders easy and gracious. 

From 1782 until the adoption of the Constitu- 
tion, Marshall was almost continuously a member 
of the Virginia Legislature. He thus became a 
witness of that course of policy which throughout 
this period daily rendered the state governments 
more and more “the hope of their enemies, the 
despair of their friends.” The termination of 
hostilities against England had relaxed the already 
feeble bonds connecting the States. Congress had 
powers which were only recommendatory, and its 
recommendations were ignored by the local legisla- 
tures. The army, unpaid and frequently in actual 
distress, was so rapidly losing its morale that it 
might easily become a prey to demagogues. The 
treaties of the new nation were flouted by every 
State in the Union. Tariff wars and conflicting 
land grants embittered the relations of sister States. 
The foreign trade of the country, it was asserted, 
“was regulated, taxed, monopolized, and crippled 
at the pleasure of the maritime powers of Europe.”’ 
Burdened with debts which were the legacy of 
an era of speculation, a considerable part of the 
population, especially of the farmer class, was de- 


manding measures of relief which threatened the 
3 


34 MARSHALL AND THE CONSTITUTION 


security of contracts. “‘Laws suspending the cok 
lection of debts, insolvent laws, instalment laws, 
tender laws, and other expedients of a like na- 
ture, were familiarly adopted or openly and boldly 
vindicated.”’* 

[From the outset Marshall ranged himself on the 
side of that party in the Virginia Legislature which, 
under the leadership of Madison, demanded with 
growing insistence a general and radical constitu- 
tional reform designed at once to strengthen the 
national power and to curtail state legislative 
power.) His attitude was determined not only by 
his sympathy for the sufferings of his former com- 
rades in arms and by his veneration for his father 
and for Washington, who were of the same party, 
but also by his military experience, which had ren- 
dered the pretensions of state sovereignty ridicu- 
ious in his eyes. Local discontent came to a head 
in the autumn of 1786 with the outbreak of Shays’s 
Rebellion in western Massachusetts. Marshall, 
along with the great body of public men of the day, 
conceived for the movement the gravest alarm, and 
the more so since he considered it as the natural 


t This review of conditions under the later Confederation is taken 
from Story’s Discourse, which is in turn based, at this point, on Mar- 
shall’s Life of Washington and certain letters of his to Story. 


MARSHALL’S EARLY YEARS 35 


culmination of prevailing tendencies. In a letter 
to James Wilkinson early in 1787, he wrote: “These 
violent . . . dissensions in a State I had thought 
inferior in wisdom and virtue to no one in our 
Union, added to the strong tendency which the poli- 
tics of many eminent characters among ourselves 
have to promote private and public dishonesty, 
cast a deep shade over that bright prospect which 
the Revolution in America and the establishment of 
our free governments had opened to the votaries of 
liberty throughout the globe. I fear, and there is 
no opinion more degrading to the dignity of man, 
that those have truth on their side who say that 
man is incapable of governing himself.’ 
(Marshall accordingly championed the adoption 
of the Constitution of 1787 quite as much because 
of its provisions for diminishing the legislative pow- 
ers of the States in the interest of private rights as 
because of its provisions for augmenting the powers 
of the General Government.\ His attitude is re- 
vealed, for instance, in the opening words of his 
first speech on the floor of the Virginia Convention, 
to which he had been chosen a member from Rich- 
mond: “Mr. Chairman, I conceive that the object 
of the discussion now before us is whether democ- 
racy or despotism be most eligible. . . . The 


386 MARSHALL AND THE CONSTITUTION 


supporters of the Constitution claim the title of 
being firm friends of liberty and the rights of man. 
We prefer this system because we think it 
a well-regulated democracy. . . . What are the 
favorite maxims of democracy? A strict observ- 
ance of justice and public faith. . . . Would to 
Heaven that these principles had been observed 
under the present government. Had this been the 
case the friends of liberty would not be willing now 
to part with it.”” The point of view which Mar- 
shall here assumed was obviously the same as that 
from which Madison, Hamilton, Wilson, and others 
on the floor of the Federal Convention had freely 
predicted that republican liberty must disappear 
from the earth unless the abuses of it practiced in 
many of the States could be eliminated. 
Marshall’s services in behalf of the Constitution 
in the closely fought battle for ratification which 
took place in the Virginia Convention are only par- 
tially disclosed in the pages of Elliot’s Debates. He 
was already coming to be regarded as one excellent 
in council as well as in formal discussion, and his 
democratic manners and personal popularity with 
all classes were a pronounced asset for any cause he 
chosetoespouse. Marshall’s part on the floor of the 
Convention was, of course, much less conspicuous 


MARSHALL’S EARLY YEARS 37 


than that of either Madison or Randolph, but in 
the second rank of the Constitution’s defenders, in- 
cluding men like Corbin, Nicholas, and Pendleton, 
he stood foremost. His remarks were naturally 
shaped first of all to meet the immediate necessities 
of the occasion, but now and then they foreshadow 
views of a more enduring value. (For example, 
he met a favorite contention of the opposition 
by saying that arguments based on the assump- 
tion that necessary powers would be abused were 
arguments against government in general and “a 
cecommendation of anarchy. ” To Henry’s despair- 
ing cry that the proposed system lacked checks, 
he replied: ‘“‘What has become of his enthusi- 
astic eulogium of the American spirit? We should 
find a check and control, when oppressed, from 
that source. In this country there is no exclu- 
sive personal stock of interest. The interest of 
the community is blended and inseparably con- 
nected with that of the individual. . . . When 
we consult the common good, we consult our 
own.” And when Henry argued that a vigorous 
union was unnecessary because “we are separated 
by the sea from the powers of Europe,” Mar- 
shall replied: “‘Sir, the sea makes them neighbors 


’ 


of us.’ 


38 MARSHALL AND THE CONSTITUTION 


It is worthy of note that Marshall gave his great- 
est attention to the judiciary article as 1t appeared 
in the proposed Constitution. He pointed out 
that the principle of judicial independence was 
here better safeguarded than in the Constitution 
of Virginia. (He stated in one breath the principle 
of judicial review and the doctrine of enumerated 
powers. If, said he, Congress “make a law not 
warranted by any of the powers enumerated, it 
would be considered by the judges as an infringe- 
ment of the Constitution which they are to guard; 
they would not consider such a law as coming with- 
in their jurisdiction. They would declare it void. ”* | 
On the other hand, Marshall scoffed at the idea 
that the citizen of a State might bring an original 
action against another State in the Supreme Court. 
His dissections of Mason’s and Henry’s arguments 
frequently exhibit controversial skill of a high or- 
der. From Henry, indeed, Marshall drew a nota- 
ble tribute to his talent, which was at the same 
time proof of his ability to keep friends with his 
enemies. 

1 J. Elliot, Debates (Edition of 1836), vol. 111, p. 503. As to Bills of 
Rights, however, Marshall expressed the opinion that they were meant 
to be ‘‘ merely reeommendatory. Were it otherwise, . . . many laws 


which are found convenient would be unconstitutional.” Op. cit., vol. 
tI, p. 509. 


MARSHALL’S EARLY YEARS 39 


On the day the great Judiciary Act became law, 
Marshall attained histhirty-fourth year. His stride 
toward professional and political prominence was 
now rapid. At the same time his private interests 
were becoming more closely interwoven with his 
political principles and personal affiliations, and his 
talents were maturing. Hitherto his outlook upon 
life had been derived largely from older men, but 
his own individuality now began to assert itself; his 
groove in life was taking final shape. 

The best description of Marshall shows him in 
the prime of his manhood a few months after his 
accession to the Supreme Bench. It appears in 
William Wirt’s celebrated Letters of the British Spy: 


The [Chief Justice] of the United States is, in his person, 
tall, meager, emaciated; his muscles relaxed, and his 
joints so loosely connected, as not only to disqualify him, 
apparently for any vigorous exertion of body, but to de- 
stroy everything like elegance and harmony in his air 
and movements. Indeed, in his whole appearance, and 
demeanour; dress, attitudes, gesture; sitting, standing 
or walking; he is as far removed from the idolized graces 
of Lord Chesterfield, as any other gentleman on earth. 
To continue the portrait: his head and face are small in 
proportion to his height; his complexion swarthy; the 
muscles of his face, being relaxed, give him the appear- 
ance of a man of fifty years of age, nor can he be much 
younger; his countenance has a faithful expression of 


40 MARSHALL AND THE CONSTITUTION 


great good humour and hilarity; while his black eyes — 
that unerring index — possess an irradiating spirit, 
which proclaims the imperial powers of the mind that 
sits enthroned within. 


The “British Spy” then describes Marshall’s 
personality as an orator at the time when he was 
still practicing at the Virginia bar: 


His voice [the description continues] is dry and hard; his 
attitude, in his most effective orations, was often ex- 
tremely awkward, as it was not unusual for him to stand 
with his left foot in advance, while all his gestures pro- 
ceeded from his right arm, and consisted merely in a 
vehement, perpendicular swing of it from about the ele- 
vation of his head to the bar, behind which he was ac- 
customed to stand. . . . [Nevertheless] if eloquence 
may be said to consist in the power of seizing the atten- 
tion with irresistible force, and never permitting it to 
elude the grasp until the hearer has received the convic- 
tion which the speaker intends, [then] this extraordinary 
man, without the aid of fancy, without the advantages 
of person, voice, attitude, gesture, or any of the orna- 
ments of an orator, deserves to be considered as one of 
the most eloquent men in the world. . . . He pos- 
sesses one original, and, almost, supernatural faculty; 
the faculty of developing a subject by a single glance of 
his mind, and detecting at once, the very point on which 
every controversy depends. No matter what the ques- 
tion; though ten times more knotty than the gnarled 
oak, the lightning of heaven is not more rapid nor more 
resistless, than his astonishing penetration. Nor does 


MARSHALL’S EARLY YEARS 41 


the exercise of it seem to cost him an effort. On the con- 
trary, it is as easy as vision. I am persuaded that his 
eyes do not fly over a landscape and take in its various 
objects with more promptitude and facility, than his 
mind embraces and analyzes the most complex subject. 

Possessing while at the bar this intellectual elevation, 
which enables him to look down and comprehend the 
whole ground at once, he determined immediately and 
without difficulty, on which side the question might be 
most advantageously approached and assailed. In a 
bad cause his art consisted in laying his premises so 
remotely from the point directly in debate, or else in 
terms so general and so spacious, that the hearer, seeing 
no consequence which could be drawn from them, was 
just as willing to admit them as not; but his premises 
once admitted, the demonstration, however distant, fol- 
lowed as certainly, as cogently, as inevitably, as any 
demonstration in Euclid. 

All his eloquence consists in the apparently deep self- 
conviction, and emphatic earnestness of his manner, the 
correspondent simplicity and energy of his style; the 
close and logical connexion of his thoughts; and the easy 
gradations by which he opens his lights on the attentive 
minds of his hearers. 

The audience are never permitted to pause for a mo- 
ment. There is no stopping to weave garlands of flow- 
ers, to hang in festoons, around a favorite argument. 
On the contrary, every sentence is progressive; every 
idea sheds new light on the subject; the listener is kept 
perpetually in that sweetly pleasurable vibration, with 
which the mind of man always receives new truths; the 


dawn advances in easy but unremitting pace; the sub- 


ject opens gradually on the view; until, rising in high 


42 MARSHALL AND THE CONSTITUTION 


relief, in all its native colors and proportions, the argu- 
ment is consummated by the conviction of the delighted 
hearer. 


What appeared to Marshall’s friends as most 
likely in his early middle years to stand in the way 
of his advancement was his addiction to ease and 
to a somewhat excessive conviviality. But it is 
worth noting that the charge of conviviality was 
never repeated after he was appoimted Chief Jus- 
tice; and as to his unstudious habits, therein per- 
haps lay one of the causes contributing to his 
achievement. Both as attorney and as judge, he 
preferred the quest of broad, underlying principles, 
and, with plenty of time for recuperation from each 
exertion, he was able to bring to each successive 
task undiminished vitality and unclouded atten- 
tion. \What the author of the Leviathan remarks 
of himself may well be repeated of Marshall — 
that he made more use of his brains than of his 
bookshelves and that, if he had read as much 
as most men, he would have been as ignorant 
as they. | 

That Marshall was one of the leading members 
of his profession in Virginia, the most recent bio- 
graphical researches unmistakably prove. “From 
1790 until his election to Congress nine years 


MARSHALL’S EARLY YEARS 43 


later,”’ Albert J. Beveridge’ writes, “‘Marshall ar- 
gued 113 cases decided by the court of appeals of 
Virginia. . . . He appeared during this time in 
practically every important cause heard and de- 
termined by the supreme tribunal of the State.” 
Practically all this litigation concerned property 
rights, and much of it was exceedingly intricate. 
Marshall’s biographer also points out the interest- 
ing fact that ““whenever there was more than one 
attorney for the client who retained Marshall, the 
latter almost invariably was retained to make the 
closing argument.”’ He was thus able to make 
good any lack of knowledge of the technical issues 
involved as well as to bring his great debating 
powers to bear with the best advantage. 
Meanwhile Marshall was also rising into political 
prominence. From the first a supporter of Wash- 
ington’s Administration, he was gradually thrust 
into the position of Federalist leader in Virginia. 
In 1794 he declined the post of Attorney-General, 
which Washington had offered him. In the follow- 
ing year he became involved in the acrimonious 
struggle over the Jay Treaty with Great Britain, 
and both in the Legislature and before meetings of 
citizens defended the treaty so aggressively that its 
« The Life of John Marshall, vol. 11, p. 177. 


44 MARSHALL AND THE CONSTITUTION 


opponents were finally forced to abandon their 
contention that it was unconstitutional and to 
content themselves with a simple denial that it was 
expedient. Early in 1796 Marshall made his first 
appearance before the Supreme Court, in the case 
of Ware vs. Hylton. The fame of his defense of 
“the British Treaty’ during the previous year had 
preceded him, and his reception by the Federalist 
leaders from New York and New England was no- 
tably cordial. His argument before the Court, too, 
though it did not in the end prevail, added greatly 
to his reputation. ‘“‘His head,” said Rufus King, 
who heard the argument, “is one of the best organ- 
ized of any one that I have known.” 

Either in 1793 or early in the following year, 
Marshall participated iz a business transaction 
which, though it did not impart to his political and 
constitutional views their original bent, yet must 
have operated more or less to confirm his opin- 
ions. A syndicate composed of Marshall, one of his 
brothers, and two other gentlemen, purchased from 
the British heirs what remained of the great Fair- 
fax estate in the Northern Neck, a tract “embrac- 
ing over 160,000 acres of the best land in Virginia.” 
By an Act passed during the Revolution, Virginia 
had decreed the confiscation of all lands held by: 


MARSHALL’S EARLY YEARS 45 


British subjects; and though the State had never 
prosecuted the forfeiture of this particular estate, 
she was always threatening to do so. Marshall’s 
investment thus came to occupy for many years a 
precarious legal footing which, it may be surmised, 
did not a little to keep alert his natural sympathy 
for all victims of legislative oppression. Moreover 
the business relation which he formed with Robert 
Morris in financing the investment brought him 
into personal contact for the first time with the 
interests behind Hamilton’s financial program, the 
constitutionality of which he had already defended 
on the hustings. 

It was due also to this business venture that 
Marshall was at last persuaded to break through 
his rule of declining office and to accept appoint- 
ment in 1797, together with Pinckney and Gerry, 
on the famous “X.Y.Z.”’ mission to France. From 
this single year’s employment he obtained nearly 
$20,000, which, says his biographer, “over and 
above his expenses,”’ was “three times his annual 
earnings at the bar”’; and the money came just in 
the nick of time to save the Fairfax investment, for 
Morris was now bankrupt and in jail. But not less 
important as a result of his services was the en- 
hanced reputation which Marshall’s correspondence 


46 MARSHALL AND THE CONSTITUTION 


with Talleyrand brought him. His return to Phila- 
delphia was a popular triumph, and even Jeffer- 
son, temporarily discomfited by the “X.Y.Z.”’ dis- 
closures, found it discreet to go through the form 
of paying him court — whereby hangs a tale. Jef. 
ferson called at Marshall’s tavern. Marshall was 
out. Jefferson thereupon left a card deploring hoy 
; “lucky” he had been. Commenting years after. 
wards upon the occurrence, Marshall remarkec 
that this was one time at least when Jefferson cam« 
near telling the truth. 

/ Through the warm insistence of Washington 
Marshall was finally persuaded in the spring o 
1799 to stand as Federalist candidate for Congres: 
in the Richmond district, The expression of hi: 
views at this time is significant. A corresponden’ 
of an Alexandria newspaper signing himself “‘ Free 
holder” put to him a number of questions intendec 
to call forth Marshall’s opinions on the issues o 
the day. In answering a query as to whether h« 
favored an alliance with Great Britain, the candi 
date declared that the whole of his “‘ politics respect 
ing foreign nations”? was “reducible to this singl: 
position. ... {Commercial intercourse with all 
but political ties with none.” But a more pressing 
issue on which the public wished information wa: 


MARSHALL’S EARLY YEARS A7 


that furnished by the Alien and Sedition laws, 
which Marshall had originally criticized on grounds 
both of expediency and of constitutionality. Now, 
however, he defended these measures on consti- 
tutional grounds, taking the latitudinarian posi- 
tion that “powers necessary for the attainment 
of all objects which are general in their nature, 
which interest all America . . . would be natu- 
rally vested in the Government of the whole,”’ but 
he declared himself strongly opposed to their re- 
newal. At the same time he denounced the Virginia 
Resolutions as calculated “to sap the foundations 
of our Union.”’ 

The election was held late in April, under con- 
ditions which must have added greatly to popular 
interest. Following the custom in Virginia, the 
voter, instead of casting a ballot, merely declared 
his preference in the presence of the candidates, 
the election officials, and the assembled multitude. 
In the intensity of the struggle no voter, halt, lame, 
or blind, was overlooked; and a barrel of whisky 
near at hand lent further zest to the occasion. Time 
and again the vote in the district was a tie, and 
as a result frequent personal encounters took place 
between aroused partisans. Marshall’s election by 
a narrow majority in a borough which was strongly 


48 MARSHALL AND THE CONSTITUTION 


pro-Jeffersonian was due, indeed, not to his prin- 
ciples but to his personal popularity and to the 
support which he received from Patrick Henry, the 
former Governor of the State. 

The most notable event of his brief stay in 
Congress was his successful defense of President 
Adams’s action in handing over to the British au- 
thorities, in conformity with the twenty-seventh 
article of the Jay treaty, Jonathan Robins, who 
was alleged to be a fugitive from justice. Adams’s 
critics charged him with having usurped a judicial 
function. “The President,” said Marshall in reply, 
“is sole organ of the nation in its external rela- 
tions, and its sole representative with foreign na- 
tions. Of consequence, the demand of a foreign 
nation can only be made on him. He possesses 
the whole executive power. He holds and directs 
the force of the nation. Of consequence, any act 
to be performed by the force of the nation is to 
be performed through him. He is charged to ex- 
ecute the laws. A treaty is declared to be a law. 
He must then execute a treaty where he, and he 
alone, possesses the means of executing it.”” This 
is one of the few speeches ever uttered on the 
floor of Congress which demonstrably made votes. 
Gallatin, who had been set to answer Marshall, 


MARSHALL’S EARLY YEARS 49 


threw up his brief; and the resolutions against 
the President were defeated by a House hostile 
to him. 

{Marshall’s course in Congress was characterized 
throughout by independence of character, modera- 
tion of views, and level good sense, of which his 
various congressional activities afford abundant 
evidence.) Though he had himself been one of 
the ““X.Y.Z.”’ mission, Marshall now warmly sup- 
ported Adams’s policy of renewing diplomatic re- 
lations with France. He took his political life in 
his hands to register a vote against the Sedition 
Act, a proposal to repeal which was brought before 
the House. He foiled a scheme which his party 
associates had devised, in view of the approaching 
presidential election, to transfer to a congressional 
committee the final authority in canvassing the 
electoral vote — a plan all too likely to precipitate 
civil war. His Federalist brethren of the extreme 
Hamiltonian type quite resented the frequency with 
which he was wont to kick over the party traces. 
“He is disposed,”” wrote Sedgwick, the Speaker, 
“to express great respect for the sovereign peo- 
ple and to quote their opinions as an evidence of 
truth,” which “is of all things the most destruc- 
tive of personal independence and of that weight of 


50 MARSHALL AND THE CONSTITUTION 


character which a great man ought to possess.” 
/ Marshall had now come to be practically indis 
pensable to the isolated President, at whose mos 
earnest insistence he entered the Cabinet as Secre 
tary of State, though he had previously decline 
to become Secretary of War.| The presidentia 
campaign was the engrossing interest of the yea 
and as it spread its ““havoce of virulence” through 
out the country, Federalists of both factions seeme 
to turn to Marshall in the hope that, by some mir 
acle of conciliation, he coulda save the day. Th 
hope proved groundless, however, and all that wa 
ultimately left the party which had founded th 
Government was to choose a President from th 
rival leaders of the opposition. Of these Marsha 
preferred Burr, because, as he explained, he kne\ 
Jefferson’s principles better. Besides having fo1 
eign prejudices, Mr. Jefferson, he continued, “ap 
pears to me to be a man who will embody himsel 
with the House of Representatives, and by weak 
ening the office of President, he will increase hi 
personal power.”’ Better political prophecy has, in 
deed, rarely been penned. Deferring nevertheles 
to Hamilton’s insistence — and, as events were t 


1 Letter from Sedgwick to King, May 11, 1800. Life and Corr 
spondence of Rufus King, vol. 11, pp. 236-7. 


MARSHALL’S EARLY YEARS 51 


prove, to his superior wisdom — Marshall kept aloof 
from the fight in the House, and his implacable foe 
was elected. 

Marshall was already one of the eminent men of 
the country when Adams, without consulting him, 
nominated him for Chief Justice. He stood at the 
head of the Virginia bar; he was the most generally 
trusted leader of his party; he already had a na- 
tional reputation as an interpreter of the Constitu- 
tion. Yet his appointment as Chief Justice aroused 
criticism even among his party friends. Their 
doubt did not touch his intellectual attainments, 
but in their opinion his political moderation, his 
essential democracy, his personal amiability, all 
counted against him. “He is,” wrote Sedgwick, 
“a man of very affectionate disposition, of great 
simplicity of manners, and honest and honorable 
in all his conduct. He is attached to pleasures, 
with convivial habits strongly fixed. He is indolent 
therefore. He has a strong attachment to popular- 
ity but is indisposed to sacrifice to it his integrity; 
hence he is disposed on all popular subjects to feel 
the public pulse, and hence results indecision and 
an expression of doubt.’’* 

It was perhaps fortunate for the Federal Judi- 


I Op. cit. 


52 MARSHALL AND THE CONSTITUTION 


ciary, of which he was now to take command, that 
John Marshall was on occasion “disposed . . . to 
feel the public pulse.’? A headstrong pilot might 
speedily have dashed his craft on the rocks; a timid 
one would have abandoned his course; but Mar- 
shall did neither. The better answer to Sedgwick’s 
fears was given in 1805 when John Randolph 
declared that Marshall’s “real worth was never 
known until he was appointed Chief Justice.”” And 
Sedgwick is further confuted by the portraits of 
the Chief Justice, which, with all their diversity, 
are in accord on that stubborn chin, that firm 
placid mouth, that steady, benignant gaze, so 
capable of putting attorneys out of countenance 
when they had to face it overlong. Here are the 
lineaments of self-confidence unmarred by vanity, 
of dignity without condescension, of tenacity un- 
touched by fanaticism, and above all, of an easy 
conscience and unruffled serenity. It required the 
lodestone of a great and thoroughly congenial re- 
sponsibility to bring to light Marshall’s real metal. 


CHAPTER Ii 
JEFFERSON'S WAR ON THE JUDICIARY 


[By a singular coincidence Marshall took his seat 
as Chief Justice at the opening of the first term 
of Court in Washington, the new capital, on Wed- 
nesday, February 4, 1801.\ The most beautiful of 
capital cities was then little more than a swamp, 
athwart which ran a streak of mire named by 
solemn congressional enactment “Pennsylvania 
Avenue.” At one end of this difficult thoroughfare 
stood the President’s mansion — still in the hands 
of the builders but already sagging and leaking 
through the shrinkage of the green timber they had 
used — two or three partially constructed office- 
buildings, and a few private edifices and boarding 
houses. Marshall never removed his residence to 
Washington but occupied chambers in one or other 
of these buildings, in company with some of the 
associate justices. This arrangement was practi- 


cable owing to the brevity of the judicial term, 
58 


54 MARSHALL AND THE CONSTITUTION 


which usually lasted little more than six weeks, and 
was almost necessitated by the unhealthful climate 
of the place. It may be conjectured that the life 
of John Marshall was prolonged for some years by 
the Act of 1802, which abolished the August term 
of court, for in the late summer and early autumn 
the place swarmed with mosquitoes and reeked 
with malaria. 

The Capitol, which stood at the other end of 
Pennsylvania Avenue, was in 1801 even less near 
completion than the President’s house; at this time 
the south wing rose scarcely twenty feet above its 
foundations. In the north wing, which was nearer 
completion, in a basement chamber, approached 
by a small hall opening on the eastern side of the 
Capitol and flanked by pillars carved to represent 
bundles of cornstalks with ears half opened at the 
top, Marshall held court for more than a third 
of a century and elaborated his great principles 
of constitutional law. This room, untouched by 
British vandalism in the invasion of 1814, was 
christened by the witty malignity of John Ran- 
dolph, “‘the cave of Trophontus.”’? 

« It should, however, be noted in the interest of accuracy, that 


the Court does not seem to have occupied its basement chamber 
during the years 1814 to 1818, while the Capitol was under repair. 


JEFFERSON’S WAR ON THE JUDICIARY 55 


{It was in the Senate Chamber in this same 
north wing that Marshall administered the oath of 
office to Jefferson just one month after he himself 
had taken office. There have been in American 
history few more dramatic moments, few more 
significant, than this occasion when these two men 
confronted each other. They detested each other 
with a detestation rooted in the most essential dif- 
ferences of character and outlook,| ‘As good for- 
tune arranged it, however, each came to occupy 
precisely that political station in which he could do 
his best work and from which he could best correct 
the bias of the other. Marshall’s nationalism res- 
cued American democracy from the vaguer horizons 
to which Jefferson’s cosmopolitanism beckoned, 
and gave to it a secure abode with plenty of elbow- 
room. Jefferson’s emphasis on the right of the 
contemporary majority to shape its own institu- 
tions prevented Marshall’s constitutionalism from 
developing a privileged aristocracy. Marshall was 
finely loyal to principles accepted from others; 
Jefferson was speculative, experimental; the per- 
sonalities of these two men did much to conserve 
essential values in the American Republic. 

As Jefferson turned from his oath-taking to de- 
liver his inaugural, Marshall must have listened 


56 MARSHALL AND THE CONSTITUTION 


with attentive ears for some hint of the attitude 
which the new Administration proposed to take 
with regard to the Federal Judiciary and especially 
with regard to the recent act increasing its numbers; 
but if so, he got nothing for his pains. The new 
President seemed particularly bent upon dispelling 
any idea that there was to be a political proscrip- 
tion. Let us, said he, “unite with one heart 
and one mind. Let us restore to social intercourse 
that harmony and affection without which liberty 
and even life itself are but dreary things. . 
Every difference of opinion is not a difference of 
principle. We have called by different names 
brethren of the same principle. We are all Re- 
publicans, we are all Federalists.”’ 
Notwithstanding the reassurance of these words, 
the atmosphere both of official Washington and of 
the country at large was electric with dangerous 
currents — dangerous especially to judges — and 
Jefferson was far too well known as an adept in 
the manipulation of political lightning to admit of 
much confidence that he would fail to turn these 
forces against his enemy when the opportune 
moment should arrive. | The national courts were 
regarded with more distrust by the mass of Re- 
publicans than any other part of the hated system 


JEFFERSON’S WAR ON THE JUDICIARY 5% 


created by the once dominant F ederalists.( The 
reasons why this was so have already been indi- 
cated, but the most potent reason in 1801, because 
it was still freshest in mind, was the domineering 
enforcement of the Sedition Act. The terms of 
this illiberal measure made, and were meant to 
make, criticism of the party in power dangerous. 
The judges — Federalists to a man and bred, more- 
over, in a tradition which ill distinguished the 
office of judge from that of prosecutor —felt little 
call to mitigate the lot of those who fell within 
the toils of the Jaw under this Act. A shining 
mark for the Republican enemies of the Judi- 
clary was Justice Samuel Chase of the Supreme 
Court. It had fallen to Chase’s lot to preside 
successively at the trial of Thomas Cooper for sedi- 
tion, at the second trial of John Fries for treason, 
and at the trial of James Thompson Callender a* 
Richmond for sedition. On each of the two latter 
occasions the defendant’s counsel, charging “op- 
pressive conduct” on the part of the presiding 
judge, had thrown up their briefs and rushed from 
the court room. In 1800 there were few Republi- 
cans who did not regard Chase as “the bloody 
Jeffreys of America.” 


58 MARSHALL AND THE CONSTITUTION 


Local conditions also frequently accentuated the 
prevailing prejudice against the Judiciary. The 
people of Kentucky, afraid that their badly tangled 
land titles were to be passed upon by the new Fed- 
eral Courts, were already insisting, when Jefferson 
took office, that the Act of the 13th of February 
creating these courts be repealed. In Maryland 
extensive and radical alterations of the judicial sys- 
tem of the State were pending. In Pennsylvania 
the situation was even more serious, for though the 
judges of the higher courts of that commonwealth 
were usually men of ability, education, and char- 
acter, the inferior magistrates were frequently the 
very opposite. By the state constitution judges 
were removable for serious offenses by impeach- 
ment, and for lesser reasons by the Governor upon 
the address of two-thirds of both branches of the 
Legislature. So long, however, as the Federalist: 
had remained in power neither remedy had been 
applied; but in 1799, when the Republicans hac 
captured both the governorship and the Legisla- 
ture, a much needed purgation of the lower courts 
had forthwith begun. 

Unfortunately this is a sort of reform that grows 
by what it feeds upon. Having got rid of the les: 
fit members of the local judiciary, the Republicar 


JEFFERSON’S WAR ON THE JUDICIARY 59 


feaders next turned their attention to some of their 
aggressive party foes on the Superior Bench. The 
most offensive of these was Alexander Addison, 
president of one of the Courts of Common Pleas 
of the State. He had started life as a Presby- 
terian preacher and had found it natural to add 
to his normal judicial duties the business of in- 
culeating “sound morals and manners.”* Addi- 
son had at once taken the Alien and Sedition laws 
under his wing, though their enforcement did not 
fall within his jurisdiction, and he found in the 
progress of the French Revolution numerous texts 
for partisan harangues to county juries. For some 
reason Addison’s enemies decided to resort to im- 
peachment rather than to removal by address; and, 
as a result, in January, 1803, the State Senate 
found him guilty of ‘‘misdemeanor,”’ ordered his 
removal from office, and disqualified him for judi- 
cial office in Pennsylvania. Not long afterwards 
the House of Representatives granted without in- 
quiry or discussion a petition to impeach three mem. 
bers of the Supreme Court of the State for having 

I President Dickinson of Pennsylvania wrote the Chief Justice and 
judges of the Supreme Court of the Commonwealth, on October 8, 
1785, that they ought not to content themselves merely with enforcing 


the law, but should also endeavor to “inculcate sound morals ana 
manners.” Pennsylvania Archives, vol. X, pp. 623-24. 


60 MARSHALL AND THE CONSTITUTION 


punished one Thomas Passmore for contempt ot 
court without a jury trial. 

[Jefferson entered office with his mind made uf 
that the Act of the 13th of February should be 
repealed. He lacked only a theory whereby he 
could reconcile this action with the Constitution 
and that was soon forthcoming. According to the 
author of this theory, John Taylor of Caroline 
a budding “Doctor Irrefragabilis” of the State 
Rights school, the proposed repeal raised two ques. 
tions: first, whether Congress could abolish courts 
created by a previous act of Congress; and second 
whether, with such courts abolished, their judge: 
still retained office. Addressing himself to the first 
question, Taylor pointed out that the Act of the 
13th of February had itself by instituting a new 
system abolished the then existing inferior courts 
As to the second point, he wrote thus: “The Con- 
stitution declares that the judge shall hold his office 
during good behavior. Could it mean that he 
should hold office after it had been abolished: 
Could it mean that his tenure should be limited by 
behaving well in an office which did not exist?” A 


1 In this connection Mr. Beveridge draws my attention to Jefier- 
son’s letter to A. Stuart of April 5, 1801. See the Complete Works o, 
Jefferson (Washington, 1857), vol. tv, p. 393. 


JEFFERSON’S WAR ON THE JUDICIARY 61 


sonstruction based on such absurdities, said he, 
“overturns the benefits of language and intellect.” 

In his message of December 8, 1801, Jefferson 
zave the signal for the repeal of the obnoxious meas- 
ire, and a month later Breckinridge of Kentucky 
mtroduced the necessary resolution in the Senate. 
In the prolonged debate which followed, the Re- 
nublicans in both Senate and House rang the 
ehanges on Taylor’s argument. The Federalists 
made a twofold answer. Some, accepting the Re- 
oublican premise that the fate of the judge was 
necessarily involved with that of the court, denied 
m toto the validity of repeal. Gouverneur Morris, 
or instance, said: “‘ You shall not take the man 
Tom the office but you may take the office from the 
man; you may not drown him, but you may sink 
is boat under him. . . . Is this not absurd?” 
Jther Federalists, however, were ready to admit 
hat courts of statutory origin could be abolished 
xy statute but added that the operation of Con- 
sress’s power in this connection was limited by the 
slain requirement of the Constitution that judges 
of the United States should hold office during good 
yehavior. Hence, though a valid repeal of the Act 
n question would take from the judges the powers 
which they derived from its provisions, the repeal 


62 MARSHALL AND THE CONSTITUTION 


would still leave them judges of the United States 
until they died, resigned, or were legally removec 
in consequence of impeachment. (The Federalist 
orators in general contended that the spirit of the 
Constitution confirmed its letter, and that its in. 
tention was clear that the national judges should 
pass finally upon the constitutionality of acts of 
Congress and should therefore be as secure as pos. 
sible from legislative molestation. 

[ The repeal of this Act was mr a strict party 
majority and was reénforced by a provision post 
poning the next session of the Supreme Court unti 
the following February. The Republican leader: 
evidently hoped that by that time all disposition tc 
test the validity of the Repealing Act in the Couri 
would have passed. But by this very precautior 
they implied a recognition of the doctrine o 
judicial review and the whole trend of the debat: 
abundantly confirmed this implication; Breckin 
ridge, Randolph, and Giles, it is true, scouted the 
claim made for the courts as “unheard-of doctrine,’ 
and as “mockery of the high powers of legislation” 
but the rank and file of their followers, with the 
excesses of the French Revolution a recent mem 
ory and a “consolidated government” a recent fear 
were not to be seduced from what they clear]; 


JEFFERSON’S WAR ON THE JUDICIARY 63 


regarded as established doctrine. Moreover, when 
it came to legislation concerning the Supreme Court, 
the majority of the Republicans again displayed 
genuine moderation, for, thrusting aside an obvious 
temptation to swamp that tribunal with additional 
judges of their own creed, they merely restored it 
to its original size under the Act of 1789. 
Nevertheless the most significant aspect in the re- 
peal of the Act of the 13th of February was the fact 
itself. The Republicans had not shown a more fla- 
grant partisanism in effecting this repeal than had 
the Federalists in originally enacting the measure 
which was now atanend. ‘Though the Federalists 
had sinned first, the fact nevertheless remained 
that in realizing their purpose the Republican 
majority had established a precedent which threat- 
ened to make of the lower Federal Judiciary the 
merest cat’s-paw of party convenience. The atti- 
tude of the Republican leaders was even more men- 
acing, for it touched the security of the Supreme 
Court itself in the enjoyment of its highest prerog- 
ative and so imperiled the unity of the nation. 
Beyond any doubt the moment was now at hand 
when the Court must prove to its supporters that it 
was still worth defending and to all that the Con- 
stitution had an authorized final interpreter. | 


§4 MARSHALL AND THE CONSTITUTION 


Marshall’s first constitutional case was that of 
Marbury vs. Madison.* The facts of this famous 
litigation are simple. On March 2, 1801, William 
Marbury had been nominated by President Adams 
to the office of Justice of the Peace in the District of 
Columbia for five years; his nomination had been 
ratified by the Senate; his commission had been 
signed and sealed; but it had not yet been delivered 
when Jefferson took office. The new President 
ordered Madison, his Secretary of State, not to 
deliver the commission. Marbury then applied to 
the Supreme Court for a writ of mandamus to the 
Secretary of State under the supposed authoriza- 
tion of the thirteenth section of the Act of 1789, 
which empowered the Court to issue the writ “in 
cases warranted by the principles and usages of law 
to . . . persons holding office under the authority 
of the United States.’’ The Court at first took 
jurisdiction of the case and issued a rule to the 
Secretary of State ordering him to show cause, but 
it ultimately dismissed the suit for want of juris- 
diction on the ground that the thirteenth section 
was unconstitutional. 

Such are the lawyer’s facts of the case; it is the 


t 1 Cranch, 137. The following account of the case is drawn largely 
upon my Doctrine of Judicial Review (Princeton, 1914). 


JEFFERSON’S WAR ON THE JUDICIARY 65 


historian’s facts about it which are today the inter- 
esting andinstructiveones. Marshall, reversing the 
usual order of procedure, left the question of juris- 
diction till the very last, and so created for him- 
self an opportunity to lecture the President on his 
duty to obey the law and to deliver the commis- 
‘sion. Marshall based his homily on the question- 
able assumption that the President had not the 
power to remove Marbury from office, for if he had 
this power the nondelivery of the document was of 
course immaterial. Marshall’s position was equal- 
ly questionable when he contended that the thir- 
teenth section violated that clause of Article ITI of 
the Constitution which gives the Supreme Court 
original jurisdiction “in ali cases affecting ambas- 
sadors, other public ministers, and consuls, and 
those in which a State shall be party.” These 
words, urged the Chief Justice, must be given an 
exclusive sense “‘or they have no operation at all.” 
This position is quite untenable, for even when 
given only their affirmative value these words still 
place the cases enumerated beyond the reach of 
Congress, and this may have been their only pur- 
pose. However, granting the Chief Justice his view 
of Article III, still we are not forced to challenge 
the validity of what Congress had done. For the 


5 


66 MARSHALL AND THE CONSTITUTION 


view taken a little later by the Court was that it 
was not the intention of Congress by this lan- 
guage to confer any jurisdiction at all, but only 
to give the right to issue the writ where the ju- 
risdiction already existed. What the Court should 
have done, allowing its view of Article III to have 
been correct, was to dismiss the case as not fall- 
ing within the contemplation of section thirteen, 
and not on the ground of the unconstitutionality 
of that section. 

Marshall’s opinion in Marbury vs. Madison was 
a political coup of the first magnitude, and by it he 
achieved half a dozen objects, some of the greatest 
importance. In the first place, while avoiding a 
direct collision with the executive power, he stig- 
matized his enemy Jefferson as a violator of the 
laws which as President he was sworn to support. 
Again, he evaded the perilous responsibility of pass- 
ing upon the validity of the recent Repeal Act in 
quo warranto proceedings, such as were then being 
broached.? For if the Supreme Court could not 


I See Benton’s Abridgment of the Debates of Congress, vol. 11, pp- 
665-68. Marshall expressed the opinion in private that the repealing 
act was “operative in depriving the judges of all power derived from 
the act repealed” but not their office, “which is a mere capacity, with- 
out new appointment, to receive and exercise any new judicial power 
which the legislature may confer.” Quoted by W. S. Carpenter in 
American Political Science Review, vol. rx, p. 528. 


JEFFERSON’S WAR ON THE JUDICIARY 67 


issue the writ of mandamus in suits begun in it by 
individuals, neither could it issue the writ of quo 
warranto in such suits. Yet again Marshall scored 
in exhibiting the Court in the edifying and reas- 
suring light of declining, even from the hands of 
Congress, jurisdiction to which it was not entitled 
by the Constitution, an attitude of self-restraint 
which emphasized tremendously the Court’s claim 
to the function of judicial review, now first definitely 
registered in deliberate judicial decision. 

At this point in Marshall’s handling of the case 
the consummate debater came to the assistance of 
the political strategist. Every one of his argu- 
ments in this opinion in support of judicial review 
will be found anticipated in the debate on the Re- 
peal Act. What Marshall did was to gather these 
arguments together, winnow them of their triviali- 
ties, inconsistencies, and irrelevancies, and com- 
press the residuum into a compact presentation of 
the case which marches to its conclusion with all 
the precision of a demonstration from Euclid. 

The salient passages of this part of his opinion 
are the following: 


[In the United States] the powers of the legislature are 
defined and limited; and that those limits may not be 
mistaken, or forgotten, the Constitution is written. To 


68 MARSHALL AND THE CONSTITUTION 


what purpose are powers limited, and to what purpose is 
that limitation committed in writing if these limits may, 
at any time. be passed by those intended to be re- 
strained? The distinction between a government with 
limited and unlimited powers is abolished, if those limits 
do not confine the persons on which they are imposed, 
and if acts prohibited and acts allowed are of equal ob- 
ligation. It is a proposition too plain to be contested: 
that the Constitution controls any legislative act repug- 
nant to it; or, that the legislature may alter the Con- 
stitution by an ordinary act. 

[If, then,] an act of the legislature, repugnant to the 
Constitution, is void, does it, notwithstanding its in- 
validity, bind the courts, and oblige them to give it 
effect? Or, in other words, though it be not law, does it 
constitute a rule as operative as if it was a law? This 
would be to overthrow in fact what was established in 
theory; and would seem, at first view, an absurdity too 
gross to be insisted on. It shall, however, receive a 
more attentive consideration. 

It is emphatically the province and duty of the 
judicial department to say what the law is. Those 
who apply the rule to particular cases, must of necessity 
expound and interpret that rule. If two laws conflict 
with each other, the courts must decide on the operation 
of each. So if a law be in opposition to the Constitu- 
tion; if both the law and the Constitution apply to a 
particular case, so that the court must either decide 
that case conformably to the law, disregarding the Con- 
stitution, or conformably to the Constitution, disregard- 
ing the law, the court must determine which of these 
conflicting rules governs the case. This is of the very 
assence of judicial duty. 


JEFFERSON’S WAR ON THE JUDICIARY 69 


[However, there are those who maintain] that courts 
must close their eyes on the Constitution, and see only the 
law. . . . Thisdoctrine would subvert the very founda- 
tion of all written constitutions. It would declare that 
an act which, according to the principles and theory of 
our government, is entirely void, is yet, in practice, com- 
pletely obligatory. It would declare thatif the legislature 
shall do what is expressly forbidden, such act, notwith- 
standing the express prohibition, is in reality effectual. 

[Moreover,] the peculiar expressions of the Constitu- 
tion of the United States furnish additional arguments 
in favor of its rejection. The judicial power of the 
United States is extended to all cases arising under the 
Constitution. Could it be the intention of those who 
gave this power, to say that in using it the Constitution 
should not be looked into? That a case arising under 
the Constitution should be decided without examining 
the instrument under which it arises? This is too ex- 
travagant to be maintained. 

In some cases, then, the Constitution must be looked 
into by the judges. And if they can open it at all, what 
part of it are they forbidden to read or to obey? There 
are many other parts of the Constitution which serve to 
illustrate this subject. ... “‘No person,”’ says the Con- 
stitution, “‘shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on 
confession in open court.” Here the language of the 
Constitution is addressed especially to the courts. It 
prescribes, directly for them, a rule of evidence not to be 
departed from. If the legislature should change that 
rule, and declare one witness, or a confession out of court, 
sufficient for conviction, must the constitutional prin- 
ciple yield to the legislative act? .. . 


70 MARSHALL AND THE CONSTITUTION 


It is also not entirely unworthy of observation, that 
in declaring what shall be the supreme law of the land, 
the Constitution itself is first mentioned; and not the 
laws of the United States generally, but those only which 
shall be made in pursuance of the Constitution, have 
that rank. 

Thus, the particular phraseology of the Constitution 
of the United States confirms and strengthens the prin- 
ciple, supposed to be essential to all written constitu- 
tions, that a law repugnant to the Constitution is void; 
and that courts, as well as other departments are bound 
by that instrument. 


There is not a false step in Marshall’s argument. 
It is, for instance, not contended that the language 
of the Constitution establishes judicial review but 
only that it “confirms and strengthens the princi- 


2) 


ple.”’ Granting the finality of judicial decisions and 
that they may not be validly disturbed by legisla- 
tive enactment, the argument is logically conelu- 
sive, whatever practical difficulties it may ignore. 

Turning back to the case itself, we ought finally 
to note how Marshall utilized this opportunity to 
make manifest the newly found solidarity of the 
Court. For the first time in its history the Court 
was one voice, speaking through its Chief Justice 
the ineluctable decrees of the law. Ordinarily even 
Marshall would not have found this achievement 
an easy task, for there were difficult personalities 


JEFFERSON’S WAR ON THE JUDICIARY 71 


among his associates. He had in Adams’s Cabinet 
demonstrated his faculty “‘of putting his ideas into 
the minds of others, unconsciously to them,”’ and 
of this power he now made use, as well as of the ad- 
vantage to be obtained from the impending com- 
mon danger. 

The case of Marbury vs. Madison was decided on 
February 24, 1803, and therefore fell between two 
other events which were immediately of almost as 
great importance in the struggle now waxing over 
the judiciary. The first of these was the impeach- 
ment of Judge Pickering of the New Hampshire 
District Court, which was suggested by the Presi- 
dent on the 3d of February and voted by the House 
on the 18th of February; the other was an address 
which Justice Chase delivered on the 2d of May to 
a Baltimore grand jury, assailing the repeal of the 
Judiciary Act and universal suffrage and predicting 
the deterioration of ‘our republican Constitution 

. Into a mobocracy, the worst of all possible 
governments.”’* Considering the fact that the 
President was still smarting from the Chief Jus- 
tice’s lash and also that Chase himself was more 


1 The account here given of Chase’s trial is based on Charles Evans’s 
shorthand Report (Baltimore, 1805), supplemented by J. Q. Adams’s 
Memoirs. 


= 


72 MARSHALL AND THE CONSTITUTION 


heartily detested by the Republicans than any 
other member of the Supreme Bench, nothing 
could have been more untimely than this fresh 
judicial excursion into the field of “manners and 
morals,” and partisan malice was naturally alert 
to interpret it as something even more offen- 
sive. The report soon came from Baltimore that 
Chase had deliberately assailed the Administration 
as “‘weak, pusillanimous, relaxed,” and governed 
by the sole desire of continuing “in unfairly ac- 
quired power.”’ But even before this intelligence 
arrived, Jefferson had decided that the opportunity 
afforded by Chase’s outburst was too good a one to 
be neglected. Writing on the 13th of May to Nich- 
olson of Maryland, who already had Pickering’s 
impeachment in charge, the President inquired: 
“Ought this seditious and official attack on the 
principles of our Constitution and the proceedings 
of a State go unpunished?”’ But he straightway 
added: ‘“‘The question is for your consideration; 
for myself it is better I should not interfere. ”’ 
Pickering’s trial began on March 2, 1804, and 
had a bearing on Chase’s fate which at once became 
clear. The evidence against the New Hampshire 
judge showed intoxication and profanity on the 
bench and entire unfitness for office, but further 


: 
: 


: 


JEFFERSON’S WAR ON THE JUDICIARY 73 


evidence introduced in his behalf proved the de- 
iendant’s insanity; and so the question at once 
arose whether an insane man can be guilty of “high 
crimes and misdemeanors?”’ Greatly troubled by 
this new aspect of the case, the Senate none the 


© 


less voted Pickering guilty “‘as charged,”’ by the 
required two-thirds majority, though eight mem- 
bers refused to vote at all. But the exponents of 
“judge-breaking’’ saw only the action of the Sen- 
ate and were blind to its hesitation. On the same 
day on which the Senate gave its verdict on Picker- 
ing, the House by a strictly partisan vote decreed 
Chase’s impeachment. 

The charges against Chase were finally elabo- 
rated in eight articles. The substance of the first 
six was that he had been guilty of “oppressive con- 
duct” at the trials of John Fries and James Thomp- 
son Callender. The seventh charged him with hav- 
ing attempted at some time in 1800 to dragoon a 
grand jury at Newcastle, Delaware, inte bringing 
forward an accusation of sedition against a local 
paper. These seven articles related therefore to 
transactions already four or five years old. The 
eighth article alone was based on the address at 
Baltimore, which it characterized as “‘an intemper- 
ateand inflammatory political harangue,”’ delivered 


74 MARSHALL AND THE CONSTITUTION 


“with intent to excite the fears and resentment . . . 
of the good people of Maryland against their State 
Government and Constitution, . . . and against the 
Government of the United States. ”’ 

(But the charges framed against Chase revealed 
only imperfectly the animus which was now com- 
ing more and more to control the impeachers. 
Fortunately, however, there was one man among 
the President’s advisers who was ready to carry 
the whole antijudicial program as far as possible. 
This uncompromising opponent was William Branch 
Giles, Senator from Virginia, whose views on the 
subject of impeachment were taken down by John 
Quincy Adams just as Chase’s trial was about to 
open. Giles, according to this record, “treated 
with the utmost contempt the idea of an independ- 
ent judiciary — said there was not a word about 
their independence in the Constitution. . . . The 
power of impeachment was given without limita- 
tion to the House of Representatives; the power 
of trying impeachment was given equally without 
limitation to the Senate; and if the Judges of the 
Supreme Court should dare, as they had done, to 
declare an act of Congress unconstitutional, or to 
send a mandamus to the Secretary of State, as they 
had done, it was the unreserved right of the House 


JEFFERSON’S WAR ON THE JUDICIARY 75 


of Representatives to impeach them, and that of 
the Senate to remove them, for giving such opin- 
ions, however, honest or sincere they may have 
been in entertaining them.” For ‘‘impeachment 
was not a criminal prosecution, it was no prosecu- 
tion at all.” | It only signified that the impeached 
officer held dangerous opinions and that his office 
ought to be in better hands. “I perceive,” adds 
Adams, on his own account, ‘‘that the impeach- 
ment system is to be pursued, and the whole bench 
of the Supreme Court to be swept away, because 
their offices are wanted. Andinthe present state of 
things I am convinced it is as easy for Mr. John 
Randolph and Mr. Giles to do this as to say it.” 
The trial formally opened on January 2, 1805, 
though the taking of testimony did not begin until 
the 9th of February. A contemporary description 
of the Senate chamber shows that the apostles of 
Republican simplicity, with the pomp of the War- 
ren Hastings trial still fresh in mind, were not at 
all averse to making the scene as impressive as pos- 
sible by the use of several different colors of cloth: 
“On the right and left of the President of the Sen- 
ate, and in a right Jine with his chair, there are two 
_ rows of benches with desks in front, and the whole 


- front and seats covered with crimson cloth... . 
| - 


76 MARSHALL AND THE CONSTITUTION 


A temporary semi-circular gallery, which consists 
of three ranges of benches, is elevated on pillars 
and the whole front and seats thereof covered with 


green cloth. . . . In this gallery ladies are ac. 
commodated. . . . On the right and left hand 
of the President . . . are two boxes of two rows 
of seats . . . that facing the President’s right 
is occupied by the managers . . . that on the 


other side of the bar for the accused and his coun- 
sel. . . these boxes are covered with blue cloth.” 
To preside over this scene of somewhat dubious 
splendor came Aaron Burr, Vice-President of the 
United States, straight from the dueling ground 
at Weehawken. 

The occasion brought forward one of the most 
extraordinary men of the day, Luther Martin, 
Chase’s friend and the leader of his counsel. Born 
at New Brunswick, New Jersey, in 1744, Martin 
graduated from Princeton in 1766, the first of a 
class of thirty-five, among whom was Oliver Ells- 
worth. Five years later he began to practice law 
on the Eastern Shore of Maryland and in the ad- 
joining counties of Virginia, where he won an 1m- 
mediate success, especially in criminal cases. At 
a single term of court, out of thirty defendants he 
procured the acquittal of twenty-nine, while the 


JEFFERSON’S WAR ON THE JUDICIARY 77 


thirtieth, indicted for murder, was convicted of 
manslaughter. In 1805 Martin was the acknowl- 
edged head of the American Bar, but at the same 
time he was undoubtedly a drunkard and a spend- 
thrift. With an income of $10,000 a year, he was 
always in need. His mediocre stature, thinning 
locks, and undistinguished features created an im- 
pression which was confirmed by his slovenly attire 
and ungrammatical speech, which seemed “shack- 
led by a preternatural secretion of saliva.’’ Here, 
indeed, for ugliness and caustic tongue was “the 
Thersites of the law.” Yet once he was roused to 
action, his great resources made themselves appar- 
ent: a memory amounting to genius, a boyish de- 
light in the rough-and-tumble of combat, a wealth 
of passion, kept in perfect curb till the enemy was 
already in rout before solid argument and then let 
loose with destroying effect. This child of nature 
was governed in his practice of the law less by 
retainers than by his personal loves and hatreds. 
Samuel Chase he loved and Thomas Jefferson he 
hated, and though his acquaintance with criminals 
had furnished him with a vituperative vocabulary 
of some amplitude, he considered no other damna- 
tion quite so scathing as to call a man “‘as great a 
scoundrel as Tom Jefferson.”’ 


78 MARSHALL AND THE CONSTITUTION 


The impeachers had no one whom they could 
pit against this “unprincipled and impudent Fed- 


b) 


eralist bulldog,” as Jefferson called him; and in 
other ways, too, from the first their lot was not 
easy. For one thing, they could not agree among 
themselves as to the proper scope of impeachment 
under the Constitution. Randolph, the leader of the 
House managers, and Campbell adhered in essence 
to Giles’s theory. But Rodney and Nicholson, both 
much abler lawyers, openly disavowed such lati- 
tudinarian doctrine. In a general way, their view 
of the matter may be stated thus: Because judges 
of the United States are guaranteed continuance 
in office only during “‘good behavior,”’ and because 
impeachment is the only method of removal recog- 
nized by the Constitution, the “high crimes and 
misdemeanors” for which impeachment is the con- 
stitutional resource must include all cases of will- 
ful misconduct in office, whether indictable or not. 
This seems sound theory and appears today to be 
established theory. But sound or not, the mana- 
gers of the Republicans were not a unit in urging it, 
while their opponents put forward with confidence 
and unanimity the theory that “high crimes and 
misdemeanors”’ were always indictable offenses. 
More calamitous still for the accusers of Chase 


JEFFERSON’S WAR ON THE JUDICIARY 79 


was the way in which, when the evidence began to 
come in, the case against him started crumpling at 
the corners. Lewis, who had been Fries’s attorney 
and whose testimony they had chiefly relied upon 
to prove the judge’s unfairness on that occasion, 
had not only acknowledged that his memory was 
“not very tenacious” after so great a lapse of 
time but had further admitted that he had real- 
ly dropped the case because he thought it “‘more 
likely that the President would pardon him [Fries] 
after having been convicted without having counsel 
than if he had.”’ Similarly Hay, whose repeated 
efforts to bring the question of the constitutionali- 
ty of the Sedition Act before the jury had caused 
the rupture between court and counsel in Callen- 
der’s case, owned that he had entertained “but 
little hopes of doing Callender any good”’ but had 
‘wished to address the public on the constitution- 
ality of the law.” Sensations multiplied on every 
side. A man named Heath testified that Chase 
had told the marshal to strike all Democrats from 
the panel which was to try Callender; whereupon 
a second witness called to confirm this testimony 
stated facts which showed the whole story to be a 
deliberate fabrication. The story that Chase had 
attacked the Administration at Baltimore was also 


80 MARSHALL AND THE CONSTITUTION 


substantially disproved by the managers’ own wit- 
nesses. But the climax of absurdity was reached 
in the fifth and sixth articles of impeachment, which 
were based on the assumption that an act of Con- 
gress had required the procedure in Callender’s case 
to be in accordance with the law of Virginia. In 
reply to this argument Chase’s attorneys quickly 
pointed out that the statute relied upon applied 
only to actions between citizens of different States! 

The final arguments began on the 20th of Feb- 
ruary. The first speech in behalf of Chase was 
delivered by Joseph Hopkinson, a young Philadel- 
phia attorney, whose effort stirred the admiration 
of Federalists and Republicans alike. He dwelt 
upon “‘the infinite importance” of the implications 
of this case for the future of the Republic, con- 
trasted the frivolity of the charges brought against 
Chase with the magnitude of the crimes of which 
Warren Hastings had been accused, and pointed 
out that, whereas in England only two judges 
had been impeached in half a century, in Amer- 
ica, “boasting of its superior purity and virtue,” 
seven judges had been prosecuted within two years. 
More loosely wrought, but not less effective was 
Martin’s address, the superb climax of a remark- 
able forensic career! The accusation against Chase 


JEFFERSON’S WAR ON THE JUDICIARY 81 


he reduced to a charge of indecorum, and he was 
ready to admit that the manner of his friend “‘bore 
a stronger resemblance to that of Lord Thurlow 
than of Lord Chesterfield,’’ but, said he, our judges 
ought not to be “like the gods of Epicurus lolling 
upon their beds of down, equally careless whether 
the laws of their country are obeyed or violated, 
instead of actively discharging their duties.” 

The closing argument, which fell to the man- 
agers, was assigned to Randolph. It was an un- 
mitigated disaster for the cause in behalf of which 
it was pronounced. “I feel perfectly inadequate 
to the task of closing this important debate on 
account of a severe indisposition which I labor 
under,’ were Randolph’s opening words, but even 
this prefatory apology gave little warning of the 
distressing exhibition of incompetence which was to 
follow. “On the reopening of the court,”’ records 
John Quincy Adams in his Memoirs, “he [Ran- 
dolph] began a speech of about two hours and a 
half, with as little relation to the subject-matter as 
possible . . . without order, connection, or argu- 
ment; consisting altogether of the most hackneyed 
commonplaces of popular declamation, mingled up 
with panegyrics and invectives upon persons, with 
a few well-expressed ideas, a few striking figures. 


4 


82 MARSHALL AND THE CONSTITUTION 


much distortion of face and contortion of body, 
tears, groans and sobs, with occasional pauses for re- 
collection, and continual complaints of having lost 
his notes.”” So ended the ambition ot John Ran- 
dolph of Roanoke to prove himself another Burke! 

But while their frontal assault on the reason of 
the court was thus breaking down, the impeach- 
ers, led by the President, were attempting a flank 
movement on its virtue. They especially distrust- 
ed the “steadiness”’ of certain New England and 
New York Senators and hoped to reach the hearts 
of these gentlemen through Aaron Burr, the Vice- 
President. Burr had heretofore found himself 
vested with the rédle of Lucifer in the Republi- 
can Paradise. Now he found himself suddenly 
basking in a perpetual sunburst of smiles both 
from the great central luminary, Jefferson, and 
his paler satellites, Madison and Gallatin. Invita- 
tions to the President’s dinners were soon followed 
by more substantial bribes. Burr’s step-son be- 
came judge of the Superior Court at New Orleans; 
his brother-in-law, secretary to the Louisiana Ter- 
ritory; his intimate friend Wilkinson, its military 
commandant. Then Giles, whose view of impeach- 
ment left him utterly shameless in the matter, drew 
up and circulated in the Senate itself a petition to 


JEFFERSON’S WAR ON THE JUDICIARY 83 


the Governor of New Jersey asking him to quash the 
indictment for murder which the Bergen County 
grand jury had found against Burr as a result of the 
duel with Hamilton. At the same time, an act was 
passed giving the retiring Vice-President the frank- 
ing privilege for life. In the debate Senator Wright 
of Maryland declared that dueling was justified by 
the example of David and Goliath and that the bill 
was opposed “only because our David had slain the 
Goliath of Federalism.” 

Whether Burr made any attempt to render the 
expected quid pro quo for these favors does not ap- 
pear, but at least if he did, his efforts were fruit- 
less. The vote on the impeachment-of Chase was 
taken on the Ist of March, and the impeachers 
were crushingly defeated. On the first article they 
could muster only sixteen votes out of thirty-four; 
on the second, only ten; on the fifth, none; on the 
sixth, four. Even on the last article, where they 
made their best showing, they were still four 
votes short of the required constitutional major- 
ity. (When the result of the last ballot was an- 
nounced, Randolph rushed from the Senate cham- 
ber to the House to introduce a resolution proposing 
an amendment to the Constitution, requiring that 
judges of the United States “shall be removed by 


84 MARSHALL AND THE CONSTITUTION 
the President on joint address of both Houses of 


Congress.” At the same time Nicholson moved 
an amendment providing legislative recall for 
Senators. Thus exasperation was vented and no 
harm done. 

Meanwhile word had come from Philadelphia 
that the impeachment of the State Supreme Court 
judges had also failed. Here, even more impres- 
sively than in the case of Chase, had been illustrated 
that solidarity of Bench and Bar which has ever 
since been such an influential factor in American 
government. The Pennsylvania judge-breakers, 
failing to induce a single reputable member of the 
Philadelphia bar to aid them, had been obliged to 
go to Delaware, whence they procured Cesar A. 
Rodney, one of the House managers against Chase. 
The two impeachments were thus closely connected 
and their results were similar. In the first place, 
it was determined that impeachment was likely 
to be, in the petulant language of Jefferson, “‘a 
farce”’ not soon to be used again for partisan pur- 
poses. In the second place, it was probable that 
henceforth, in the Commonwealths as well as in the 
National Government, political power would be 
exercised subject to constitutional restraints ap- 
plied judicially. In the third place, however, the 


JEFFERSON’S WAR ON THE JUDICIARY 85 


judges would henceforth have to be content with 
the possession of this magnificent prerogative and 
dispense with all judicial homilies on “manners 
and morals.”” It was a fair compromise and has 


on the whole proved a beneficial one. | 


CHAPTER IV 
THE TRIAL OF AARON BURR 


. WueEn, on March 30, 1807, Colonel Aaron Burr, 
late Vice-President of the United States, was 
brought before Chief Justice Marshall in the Eagle 
Tavern at Richmond on the charge of treason, 
there began the greatest criminal trial in American 
history and one of the notable trials in the annals 
of the law. . 

“The Burr Conspiracy ”’ still remains after a hun- 
dred years an unsolved enigma. Yet whether Burr 
actually planned treason against the United States 
in the year of grace 1806 is after all a question 
of somewhat restricted importance. The essential 
truth is that he was by nature an adventurer who, 
in the words of Hamilton, “believed all things pos- 
sible to daring and energy,’”’ and that in 1806 he was 
a bankrupt and a social outcast to boot. Whether, 
therefore, his grandiose project of an empire on the 


ruins of Spanish dominion in Mexico involved also 
86 


THE TRIAL OF AARON BURR 87 


an effort to separate some part of the West from the 
Union is a question which, if it was ever definitely 
determined in Burr’s own mind, was determined, 
we may be sure, quite independently of any moral 
or patriotic considerations. 

Burr’s activities after his term of public office 
ended in March, 1805, were devious, complicated, 
and purposely veiled, involving many men and 
spread over a large territory.‘ Near Marietta 
on an island in the Ohio River, Burr came upon 
Harman Blennerhassett, a genial Irishman living 
in a luxurious and hospitable mansion which was 
making a heavy drain upon his already diminished 
resources. Here Burr, by his charm of manner and 
engaging conversation, soon won from the simple 
Irishman his heart and his remaining funds. He 
also made the island both a convenient rendez- 
vous for his adherents in his ambitious schemes 
and a starting point for his own extended ex- 
peditions, which took him during the latter part 
of this year to Natchez, Nashville, St. Louis, Vin- 
cennes, Cincinnati, and Philadelphia, and back 
to Washington. 

In the summer of 1806 Burr turned westward 


1 An account of the Burr conspiracy will be found in Jefferson and 
his Colleagues, by Allen Johnson (in The Chronicles of America). 


88 MARSHALL AND THE CONSTITUTION 


a second time and with the assistance of Blen- 
nerhassett he began military preparations on the 
latter’s island for a mysterious expedition. On 
the 29th of July, Burr had dispatched a letter in 
cipher to Wilkinson, his most important confed- 
erate. The precise terms of this document we 
shall never know, but apparently it contained the 
most amazing claims of the successful maturing of 
Burr’s scheme: “‘funds had been obtained,” “‘Eng- 
hish naval protection had been secured,” ““from 
five hundred to a thousand men” would be on 
the move down the Mississippi by the middle of 
November. Unfortunately for Burr, however, Wil- 
kinson was far too expert in the usages of ini- 
quity to be taken in by such audacious lying as 
this. He guessed that the enterprise was on the 
verge of collapse and forthwith made up his mind 
to abandon it. 

Meanwhile exaggerated accounts of the size of 
Burr’s following were filtering to Washington, to- 
gether with circumstantial rumors of the disloy- 
alty of his designs. Yet for weeks Jefferson did 
nothing, until late in November his alarm was 
aroused by a letter from Wilkinson, dated the 
21st of October. On the 27th of November the 
President issued a proclamation calling upon all 


THE TRIAL OF AARON BURR 89 


good citizens to seize ““sundry persons” who were 
charged with setting on foot a military expedition 
against Spain. Already Burr, realizing that the 
West was not so hot for disunion as perhaps he had 
supposed it to be, began to represent his project 
as a peaceful emigration to the Washita, a pre- 
caution which, however, came too late to allay 
the rising excitement of the people. Fearing the 
seizure of their equipment, thirty or forty of Burr’s 
followers under the leadership of Blennerhassett 
left the island in four or five flatboats for New 
Orleans, on the night of the 10th of December, and 
a few days later were joined by Burr himself at 
the mouth of the Cumberland. When the little 
expedition paused near Natchez, on the 10th of 
January, Burr was confronted with a newspaper 
containing a transcription of his fatal letter to Wil- 
kinson. A week later, learning that his former ally, 
Wilkinson, had now established a reign of ter- 
ror at New Orleans directed against his followers, 
and feeling no desire to test the tender mercies 
of a court-martial presided over by his former 
associate, Burr surrendered himself into the cus- 
tody of the acting Governor of Mississippi Ter- 
ritory. But the refusal of the territorial grand jury 
to indict him suggested the hope that he might 


90 MARSHALL AND THE CONSTITUTION 


still escape from the reach of the law. He there- 
fore plunged into the wilderness, headed for the 
Spanish border, and had all but reached his des- 
tination when he was recognized and recaptured at 
Wakefield, Alabama. 

/Owing to the peculiar and complicated circum- 
stances which led up to it, Burr’s case was from the 
outset imbued with factional and partisan polities 
of the most extreme kind) While the conspiracy 
was at its height, Jefferson, though emphatically 
warned, had refused to lend it any credence what- 
ever; but when the danger was well over he had 
thrown the whole country into a panic, and had 
even asked Congress to suspend the writ of habeas 
corpus. The Federalists and the President’s ene- 
mies within his own party, headed by the re- 
doubtable Randolph, were instantly alert to the 
opportunity which Jefferson’s inexplicable conduct 
afforded them. ‘“‘The mountain had labored and 
brought forth a mouse,”’ quoted the supercilious; 
the executive dragnet had descended to envelop 
the monster which was ready to split the Union 
or at least to embroil its relations with a friendly 
power, and had brought up —a few peaceful agri- 
culturists! Nor was this the worst of the matter, 
contended these critics of the Administration, for 


THE TRIAL OF AARON BURR 91 


the real source of the peril had been the Presi- 
dent’s own action in assigning the command at 
New Orleans to Wilkinson, a pensioner of Spain, 
a villain “from the bark to the very core.”” Yet so 
far was the President from admitting this error 
that he now attributed the salvation of the country 
to “‘the soldier’s honor”’ and “the citizen’s fidelity” 
of this same Wilkinson. Surely, then, the real de- 
fendants before the bar of opinion were Thomas 
Jefferson and his precious ally James Wilkinson, 
not their harried and unfortunate victim, Aaron 
Burr! 

The proceedings against Burr occupied alto- 
gether some seven months, during which the sleepy 
little town of Richmond became the cynosure of 
all eyes. So famous was the case that it brought 
thither of necessity or out of curiosity men of every 
rank and grade of life, of every species of renown. 
The prosecution was in charge of the United 
States District Attorney, George Hay — serious, 
humorless, faithful to Jefferson’s interests, and ab- 
solutely devoid of the personal authority demanded 
by so grave a cause. He was assisted by William 
Wirt, already a brilliant lawyer and possessed of 
a dazzling elocution, but sadly lacking in the maj- 
esty of years. At the head and forefront of the 


92 MARSHALL AND THE CONSTITUTION 


defense stood Burr himself, an unerring legal tac- 
tician, deciding every move of the great game, the 
stake of which for him was life itself. About him 
were gathered the ablest members of the Rich- 
mond bar: John Wickham, witty and ingenious, . 
Edmund Randolph, ponderous and pontifical, Ben- 
jamin Botts, learned and sarcastic, while from 
Baltimore came Luther Martin to aid his “highly 
respected friend,”’ to keep the political pot boil- 
ing, and eventually to fall desperately in love 
with Burr’s daughter, the beautiful Theodosia. 
Among the 140 witnesses there were also some 
notable figures: William Eaton, the hero of Derne, 
whom Burr’s codefendant, Blennerhassett, describes 
for us as “‘strutting about the streets under a tre- 
mendous hat, with a Turkish sash over colored 
clothes,”’ and offering up, with his frequent liba- 
tions in the taverns, “the copious effusions’ of 
his sorrows’’; Commodore Truxton, the gallant 
commander of the Canstellemiaas General Andrew 
Jackson, future President of the United States, 
but now a vehement declaimer of Burr’s inno- 
cence — out of abundant caution for his own repu- 
tation, it may be surmised; Erick Bollmann, once 
a participant in the effort to release Lafayette 
from Olmutz and himself just now released from 


THE TRIAL OF AARON BURR 93 


durance vile on a writ of habeas corpus from the 
Supreme Court; Samuel Swartwout, another tool 
of Burr’s, reserved by the same beneficent writ for 
a career of political roguery which was to culminate 
in his swindling the Government out of a million 
and a quarter dollars; and finally the bibulous and 
traitorous Wilkinson, “whose head” as he himself 


« 


‘might err,” but “whose heart could not 


99 


- owned, 
_ deceive.”’ Traveling by packet from New Orleans, 
_ this essential witness was heralded by the impatient 
_ prosecution, till at last he burst upon the stage with 
all the éclat of the hero in a melodrama — only to 
_ retire baffled and perplexed, his villainy guessed by 

_ his own partisans. 

(By the Constitution treason against the United 
| States corisists ‘only in levying war against them, 
_ or in adhering to their enemies, giving them aid and 
_comfort,”’ and no person may be convicted of it 
“unless on the testimony of two witnesses to the 
same overt act, or on confession in open court.”” | 
_ The motion to commit Burr for treason thus raised 
_ at the outset the question whether in this case an 
“overt act” existed. Marshall, who held that ne 
evidence had been shown to this effect, denied 
the motion, but consented to commit the prison-: 
er on the lesser charge that he had attempted « 


94 MARSHALL AND THE CONSTITUTION 


military expedition against Spain. As this was a 
bailable offense, however, Burr was soon at liberty 
once more. 

Nor was this the only respect in which the pre- 
liminary proceedings sounded a note of antago- 
nism between the Chief Justice and the Adminis- 
tration which was to recur again and yet again in 
the months following. Only a few weeks earlier 
at Washington, Marshall had, though with some 
apparent reluctance, ordered the release of Boll- 
mann and Swartwout, two of Burr’s tools, from the 
custody of the Federal authorities. Alluding in 
his present opinion to his reason for his earlier 
action, he wrote: ““More than five weeks have 
elapsed since the opinion of the Supreme Court has 
declared the necessity of proving the fact, if it 
exists. Why is it not proved? To the executive 
government is entrusted the important power of 
prosecuting those whose crimes may disturb the 
public repose or endanger its safety. It would 
be easy, in much less time than has intervened 
since Colonel Burr has been alleged to have as- 
sembled his troops, to procure affidavits estab- 
lishing the fact.” 

This sharp criticism brought an equally sharp 
retort from Jefferson, to which was added a threat. 


THE TRIAL OF AARON BURR 95 


In a private letter of the 20th of April, the Presi- 
dent said: ‘‘In what terms of decency can we speak 
ofthis? Asifan express could go to Natchez or the 
mouth of the Cumberland and return in five weeks, 
to do which has never taken less than twelve! .. . 
But all the principles of law are to be perverted. 
which would bear on the favorite offenders who 
endeavor to overturn this odious republic! .. . 
_ All this, however, will work well. The nation will 
_ judge both the offender and judges for themselves. 
| They will see then and amend the error in 
our Constitution which makes any branch inde- 
_ pendent of the nation. ... If their [the judges] 
protection of Burr produces this amendment, it 
_ will do more good than his condemnation would 
have done.” Already the case had taken on the 
_ color of a fresh contest between the President and 
the Chief Justice. 
— On the 22d of May the United States Court 
for the Fifth Circuit and the Virginia District for- 
mally convened, with Marshall presiding and Judge 
Griffin at his side. On the same day the grand 
jury was sworn, with John Randolph as fore- 
man, and presently began taking testimony. Un- 
| luckily for the prosecution, the proceedings now 
_ awaited the arrival of Wilkinson and the delay was 


96 MARSHALL AND THE CONSTITUTION 


turned to skillful use by the defense to embroil 
further the relations between the Chief Justice and 
the President. With this end in view, Burr moved 
on the 9th of June that a subpena duces tecum 
issue to Jefferson requiring him to produce certain 
papers, including the famous cipher letter to Wil- 
kinson. The main question involved, of course, 
was that of the right of the Court under any cir- 
cumstances to issue a subpoena to the President, 
but the abstract issue soon became involved with a 
much more irritating personal one. “This,” said 
Luther Martin, who now found himself in his 
element, “‘this is a peculiar case, sir. The Presi- 
dent has undertaken to prejudge my client by 
declaring that ‘of his guilt there is no doubt.’ He 
has assumed to himself the knowledge of the Su- 
preme Being himself and pretended to search the 
heart of my highly respected friend. He has pro- 
claimed him a traitor in the face of the country 
which has rewarded him. He has let slip the dogs 
of war, the hell-hounds of persecution, to hunt 
down my friend. And would this President of the 
United States, who has raised all this absurd 
clamor, pretend to keep back the papers which are — 
wanted for this trial, where life itself is at stake?” 
Wirt’s answer to Martin was also a rebuke to the 


THE TRIAL OF AARON BURR 97 


Court. “Do they [the defense] flatter themselves,” 
| he asked, “‘that this court feel political prejudices 
which will supply the place of argument and inno- 
| cence on the part of the prisoner? Their conduct 
_ amounts to an insinuation of the sort. But I donot 
| believe it... . Sir, no man, foreigner or citizen, 
| who hears this language addressed to the court, and 
| received with all the complacency at least which 
| silence can imply, can make any inference from 
it very honorable to the court.” These words 
| touched Marshall’s conscience, as well they might. 
| At the close of the day he asked counsel hence- 
_ forth to “confine themselves to the point really 
| before the court”? —a request which, however, 
was by no means invariably observed through 
_ the following days. 

A day or two later Marshall ruled that the sub- 
peena should issue, holding that neither the per- 
_ sonal nor the official character of the President 
| exempted him from the operation of that constitu- 
tional clause which guarantees accused persons 
“compulsory process for obtaining witnesses”’ in 
_ their behalf. The demand made upon the Fresi- 
dent, said the Chief Justice, by his official duties 
is not an unremitting one, and, “‘if it should exist 


at the time when his attendance on a court is 
7 


98 MARSHALL AND THE CONSTITUTION 


required, it would be sworn on the return of the 
subpoena and would rather constitute a reason for 
not obeying the process of the court than a rea- 
son against its being issued.”” Jefferson, however, 
neither obeyed the writ nor swore anything on its 
return, though he forwarded some of the papers 
required to Hay, the district attorney, to be used 
as the latter might deem best. The President’s 
argument was grounded on the mutual independ- 
ence of the three departments of Government; and 
he asked whether the independence of the Execu- 
tive could long survive “‘if the smaller courts could 
bandy him from pillar to post, keep him constantly 
trudging from North to South and East to West, 
and withdraw him entirely from his executive 
duties?”’ The President had the best of the en- 
counter on all scores. Not only had Marshall for- 
gotten for the nonce the doctrine he himself had 
stated in Marbury vs. Madison regarding the con- 
stitutional discretion of the Executive, but what was 
worse still, he had forgotten his own discretion on 
that occasion. He had fully earned his rebuff, but 
that fact did not appreciably sweeten it. 

On the 24th of June the grand jury reported two 
indictments against Burr, one for treason and the 
other for misdemeanor. The former charged that 


THE TRIAL OF AARON BURR 99 
Burr, moved thereto “by the instigation of the 


- devil,”” had on the 10th of December previous 


levied war against the United States at Blenner. 
hassett’s island, in the county of Wood, of the Dis. 


_ trict of Virginia, and had on the day following, at 


the same place, set in motion a warlike array 


against the city of New Orleans. ‘The latter 
charged that a further purpose of this same war- 
like array was an invasion of Mexico. Treason not, 
being a bailable offense, Burr had now to go to 


_ jail, but, as the city jail was alleged to be unhealth- 


ful, the Court allowed him to be removed to quar- 


_ ters which had been proffered by the Governor of 
_ the State in the penitentiary just outside the city. 


Burr’s situation here, writes his biographer, “‘was 


_ extremely agreeable. He had a suite of rooms in 
_ the third story, extending one hundred feet, where 
| he was allowed to see his friends without the pres- 
_ ence of a witness. His rooms were so thronged with 


visitors at times as to present the appearance of 


a levee. Servants were continually arriving with 
| messages, notes, and inquiries, bringing oranges, 
! lemons, pineapples, raspberries, apricots, cream, 
_ butter, ice, and other articles — presents from the 
ladies of the city. In expectation of his daugh- 


ter’s arrival, some of his friends in town provided 


100 MARSHALL AND THE CONSTITUTION 


a house for her accommodation. The jailer, too, 
was all civility.”"* Little wonder that such goings- 
on are said to have “‘filled the measure of Jeffer- 
son’s disgust.” , 

The trial itself opened on Monday, the 3d of 
August. The first business in hand was to get 
a jury which would answer to the constitutional 
requirement of impartiality — a task which it was 
soon discovered was likely to prove a difficult one. 
The original panel of forty-eight men contained 
only four who had not expressed opinions unfavor- 
able to the prisoner, and of these four all but one 
admitted some degree of prejudice against him. 
These four were nevertheless accepted as jurors. 
A second panel was then summoned which was 
even more unpromising in its make-up, and Burr’s 
counsel began hinting that the trial would have to 
be quashed, when Burr himself arose and offered to 
select eight out of the whole venire to add to the 
four previously chosen. ‘The offer was accepted, 
and notwithstanding that several of the jurors 
thus obtained had publicly declared opinions hos- 
tile to the accused, the jury was sworn in on the 
17th of August. 


I Parton’s Life and Times of Aaron Burr (13th Edition, N. Y., 1860), 
p. 479. 


THE TRIAL OF AARON BURR 101 


At first glance Burr’s concession in the select- 
ing of a jury seems extraordinary. But then, 
why should one so confident of being able to 
demonstrate his innocence fear prejudice which 
rested on no firmer basis than ignorance of the 
facts? This reflection, however, probably played 
small part in Burr’s calculations, for already he 
_ knew that if the contemplated strategy of his 
_ counsel prevailed the case would never come be- 
_ fore the jury. 

The first witness called by the prosecution was 
_ Eaton, who was prepared to recount the substance 
of numerous conversations he had held with Burr 
| in Washington in the winter of 1805-6, in which 
_ Burr had gradually unveiled to him the treason- 
abie character of his project. No sooner, however, 
was Eaton sworn than the defense entered the ob- 
jection that his testimony was not yet relevant, 
contending that in a prosecution for treason the 
_ great material fact on which the merits of the en- 
tire controversy pivots was the overt act, which 


> 


- must be “an open act of war’; just as in a mur- 
der trial the fact of the killing, the corpus deiict, 
must be proved before any other testimony was 
relevant, so in the pending prosecution, said they, 


no testimony was admissible until the overt act 


102 MARSHALL AND THE CONSTITUTION 


had been shown in the manner required by the 
Constitution. 

The task of answering this argument fell to Wirt, 
who argued, and apparently with justice, that the 
prosecution was free to introduce its evidence in 
any order it saw fit, provided only that the evi- 
dence was relevant to the issue raised by the indict- 
ment, and that if an overt act was proved “in the 
course of the whole evidence,” that would be suf- 
ficient. The day following the Court read an opin- 
ion which is a model of ambiguous and equivo- 
cal statement, but the purport was fairly clear: 
for the moment the Court would not interfere, 
and the prosecution was free to proceed as it 
thought best, with the warning that the Damo- 
cles sword of “‘irrelevancy”’ was suspended over 
its head by the barest thread and might fall at 
any moment. 

For the next two days the legal battle was kept 
in abeyance while the taking of testimony went for- 
ward. Eaton was followed on the stand by Com- 
modore Truxton, who stated that in conversation 
with him Burr had seemed to be aiming only at 
an expedition against Mexico. Then came General 
Morgan and his two sons, who asserted their be- 
lief in the treasonable character of Burr’s designs. — 


THE TRIAL OF AARON BURR 103 


Finally a series of witnesses, the majority of them 
servants of Blennerhassett, testified that on the 
evening of December 10, 1806, Burr’s forces had 
assembled on the island. 

This line of testimony concluded, the prosecu- 
tion next indicated its intention of introducing 
evidence to show Burr’s connection with the as- 
semblage on the island, when the defense sprang 
the cowp it had been maturing from the outset. 
Pointing out the notorious fact that on the night 
of the 10th of December Burr had not been present 
at the island but had been two hundred miles away 
in Kentucky, they contended that, under the Con- 
stitution, the assemblage on Blennerhassett’s is- 
land could not be regarded as his act, even granting 
that he had advised it, for, said they, advising war 
is one thing but levying it is quite another. If this 
interpretation was correct, then no overt act of 
levying war, either within the jurisdiction of the 
Court or stated in the indictment, had been, or 
could be, shown against Burr. Hence the taking of 
evidence — if not the cause itself, indeed — should 
be discontinued. 

The legal question raised by this argument was 
the comparatively simple one whether the con- 
stitutional provision regarding treason was to be 


104 MARSHALL AND THE CONSTITUTION 


interpreted in the light of the Common Law doc- 
trine that “‘in treason all are principals.” For if it 
were to be so interpreted and if Burr’s connection 
with the general conspiracy culminating in the as- 
semblage was demonstrable by any sort of legal 
evidence, then the assemblage was his act, his overt 
act, proved moreover by thrice the two witnesses 
constitutionally required! Again it fell to Wirt 
to represent the prosecution, and he discharged 
his task most brilliantly. He showed beyond per- 
adventure that the Common Law doctrine was 
grounded upon unshakable authority; that, con- 
sidering the fact that the entire phraseology of the 
constitutional clause regarding treason comes from 
an English statute of Edward III’s time, it was 
reasonable, if not indispensable, to construe it in 
the light of the Common Law; and that, certainly 
as to a procurer of treason, such as Burr was 
charged with being, the Common Law doctrine 
was the only just doctrine, being merely a re- 
affirmation of the even more ancient principle that 
‘what one does through another, he does himself.” 

In elaboration of this last point Wirt launched 
forth upon that famous passage in which he 
contrasted Burr and the pathetic victim of 
his conspiracy: 


THE TRIAL OF AARON BURR 105 


Who [he asked] is Blennerhassett? A native of Ireland, 
a man of letters, who fled from the storms of his own 
country to find quiet in ours. . . . Possessing himself 
of a beautiful island in the Ohio he rears upon it a 
palace and decorates it with every romantic embellish- 
ment of fancy. [Then] in the midst of all this peace, 
this innocent simplicity, this pure banquet of the heart, 
the destroyer comes . . . to change this paradise into 
a hell. . . . By degrees he infuses [into the heart of 
Blennerhassett] the poison of his own ambition... . 
In a short time the whole man is changed, and every 
object of his former delight is relinquished. ... His 
books are abandoned. .. . His enchanted island is des- 
tined soon to relapse into a wilderness; and in a few 
months we find the beautiful and tender partner of his 
bosom, whom he lately ‘permitted not the winds of 
summer to visit too roughly,’ we find her shivering at 
midnight on the winter banks of the Ohio and mingling 
her tears with the torrents that froze as they fell. Yet 
this unfortunate man, thus ruined, and undone and 
made to play a subordinate part in this grand drama of © 
guilt and treason, this man is to be called the principal 
offender, while he by whom he was thus plunged in 
misery is comparatively innocent, a mere accessory! 
Is this reason? Isitlaw? Isit humanity? Sir, neither 
the human heart nor the human understanding will bear 
a perversion so monstrous and absurd! 


But there was one human heart, one human 
understanding — and that, in ordinary circum- 
stances, a very good one — which was quite willing 
to shoulder just such a monstrous perversion, or 


106 MARSHALL AND THE CONSTITUTION 


at least its equivalent, and that heart was John 
Marshall’s. The discussion of the motion to arrest 
the evidence continued ten days, most of the time 
being occupied by Burr’s attorneys." Finally, on 
the last day of the month, the Chief Justice handed 
down an opinion accepting practically the whole 
contention of Burr’s attorneys, but offering a 
totally new set of reasons for it. On the main ques- 
tion at issue, namely, whether under the Constitu- 
tion all involved in a treasonable enterprise are - 
principals, Marshall pretended not te pass; but in. 
fact he rejected the essential feature of the Com- 
mon Law doctrine, namely, the necessary legal 
presence at the scene of action of all parties to the 
conspiracy. The crux of his argument he embodied 
in the following statement: “If in one case the 


t A recurrent feature of their arguments was a denunciation of 
“constructive treason.”” But this was mere declamation. Nobody 
was charging Burr with any sort of treason except that which is spe- 
cifically defined by the Constitution itself, namely, the levying of war 
against the United States. The only question at issue was as to the 
method of proof by which this crime may be validly established in the 
case of one accused of procuring treason. There was also much talk 
about the danger and injustice of dragging a man from one end of the 
country to stand trial for an act committed at the other end of it. 
The answer was that, if the man himself procured the act or joined 
others in bringing it about, he ought to stand trial where the act 
occurred. This same “injustice” may happen today in the case of 
murder! 


THE TRIAL OF AARON BURR 107 


oresence of the individual make the guilt of the 
[treasonable] assemblage his guilt, and in the other 
case, the procurement by the individual make the 
guilt of the [treasonable] assemblage, his guilt, then 
presence and procurement are equally component 
parts of the overt act, and equally require two 


> 


witnesses.”’ Unfortunately for this argument, the 
Constitution does not require that the “component 
parts” of the overt act be proved by two witnesses, 
but only that the overt act — the corpus delictt — 
be so proved; and for the simple reason that, when 
by further evidence any particular individual is 
connected with the treasonable combination which 
brought about the overt act, that act, assuming 
the Common Law doctrine, becomes his act, and 
he is accordingly responsible for it at the place 
where it occurred. Burr’s attorneys admitted this 
contention unreservedly. Indeed, that was pre- 
cisely the reason why they had opposed the Com- 
mon Law doctrine. 

Marshall’s effort to steer between this doctrine 
and its obvious consequences for the case before 
him placed him, therefore, in the curious position 
of demanding that two overt acts be proved each by 
two witnesses. But if two, why not twenty? For 
it must often happen that the traitor’s connection 


108 MARSHALL AND THE CONSTITUTION 


with the overt act is demonstrable not by a sin- 
gle act but a series of acts. Furthermore, in the 
case of procurers of treason, this connection will 
ordinarily not appear in overt acts at all but, as in 
Burr’s own case, will be covert. Can it be, then, 
that the Constitution is chargeable with the ab- 
surdity of regarding the procurers of treason as 
traitors and yet of making their conviction im- 
possible? The fact of the matter was that six 
months earlier, before his attitude toward Burr’s 
doings had begun to take color from his hatred 
and distrust of Jefferson, Marshall had entertained 
no doubt that the Common Law doctrine underlay 
the constitutional definition of treason. Speaking 
for the Supreme Court in the case of Bollmann 
and Swartwout, he had said: “It is not the inten- 
tion of the Court to say that no individual can be 
guilty of this crime who has not appeared in arms 
against his country; on the contrary, if war be ac- 
tually levied, that is, if a body of men be actually 
assembled for the purpose of effecting by force a 
treasonable purpose, all those who perform any 
part however minute, or however remote from the 
scene of action, and who are actually leagued in the 
general conspiracy, are to be considered traitors.” 
Marshall’s effort to square this previous opinion 


THE TRIAL OF AARON BURR 109 


with his later position was as unconvincing as it 
was labored.' 

Burr’s attorneys were more prudent: they dis- 
missed Marshall’s earlier words outright as obzter 
dicta— and erroneous at that! Nevertheless when, 
thirty years later, Story, Marshall’s friend and pu- 
pil, was in search of the best judicial definition of 
treason within the meaning of the Constitution, 
he selected this sentence from the case of Boll- 
mann and Swartwout and passed by the elabo- 
rate opinion in Burr’s case in significant silence. 
But reputation is a great magician in transmut- 
ing heresy into accepted teaching. Posthumously 
Marshall’s opinion has attained a rank and au- 
thority with the legal profession that it never en- 
joyed in his own time. Regarding it, therefore, as 
today established doctrine, we may say that it has 
quite reversed the relative importance of conspir- 
acy and overt act where the treason is by levying 


I The way in which Marshall proceeded to do this was to treat the 
phrase “perform a part” as demanding “a levying of war” on the 
part of the performer. (Robertson, Reports, vol. u, p. 438.) But this 
explanation will not hold water. For what then becomes of the phrase 
“scene of action”’ in the passage just quoted? What is the differ- 
ence between the part to be performed “however minute,” and the 
“‘action”’ from which the performer may be “however remote”? Itis 
perfectly evident that the “‘action” referred to is the assemblage 
which is regarded as the overt act of war, and that the “part however 
minute” is something very different. 


{10 MARSHALL AND THE CONSTITUTION 


war. At the Common Law, and in the view of the 
framers of the Constitution, the importance of the 
overt act of war was to make the conspiracy visi- 
ble, to put its existence beyond surmise. By Mar- 
shall’s view each traitor is chargeable only with his 
own overt acts, and the conspiracy is of impor- 
tance merely as showing the intention of such acts. 
And from this it results logically, as Marshall saw, 
though he did not venture to say so explicitly, that 
the procurer of treason is not a traitor unless he has 
also participated personally in an overt act of war. 
As Wirt very justifiably contended, such a result 
is ‘‘monstrous,”’ and, what is more, it has not been 
possible to adhere to it in practice. In recent legis- 
lation necessitated by the Great War, Congress has 
restored the old Common Law view of treason but 
has avoided the constitutional difficulty by labeling 
the offense ““Espionage.”’ Indeed, the Espionage 
Act of June 15, 1917, scraps Marshall’s opinion 
pretty completely.* 

On the day following the reading of Marshall’s 


It See especially Title I, Section 4, of the Act. For evidence of the 
modern standing of Marshall’s opinion, see the chorus of approval 
sounded by the legal fraternity in Dillon’s three volumes. In support 
of the Common Law doctrine, see the authorities cited in 27 Yale Law 
Journal, p. 342 and footnotes; the chapter on Treason in Simon 
Greenleaf’s well-known Treatise on the Law of Evidence; United States 
vs. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621. 


THE TRIAL OF AARON BURR 111 


opinion, the prosecution, unable to produce two 
witnesses who had actually seen Burr procure the 
assemblage on the island, abandoned the case to 
the jury. Shortly thereafter the following verdict 
was returned: “We of the jury say that Aaron 
Burr is not proved to be guilty under this in- 
dictment by any evidence submitted to us. We 
therefore find him not guilty.”’ At the order of the 
Chief Justice this Scotch verdict was entered on the 
records of the court as a simple Not Guilty. 
Marshall’s conduct of Burr’s trial for treason is 
the one serious blemish in his judicial record, but 
for all that it was not without a measure of ex- 
tenuation. The President, too, had behaved de- 
plorably and, feeling himself on the defensive, had 
pressed matters with most unseemly zeal, so that 
the charge of political persecution raised by Burr’s 
attorneys was, to say the least, not groundless. 
Furthermore, in opposing the President in this 
matter, Marshall had shown his usual political 
sagacity. Had Burr been convicted, the advantage 
must all have gone to the Administration. The 
only possible credit the Chief Justice could extract 
*rom the case would be from assuming that lofty 
tone of calm, unmoved impartiality of which Mar- 
shall was such a master — and never more than on 


112 MARSHALL AND THE CONSTITUTION 


this occasion — and from setting himself sternly 
against popular hysteria. The words with whick 
his opinion closes have been often quoted: 


Much has been said in the course of the argument on 
points on which the Court feels no inclination to com- 
ment particularly, but which may, perhaps not im- 
properly receive some notice. . 

That this Court dare not usurp power is most true. 

That this Court dare not shrink from its duty is not 
less true. 

No man 1s desirous of placing himself in a disagree- 
able situation. No man is desirous of becoming the 
popular subject of calumny. No man, might he let the 
bitter cup pass from him without self-reproach, would 
drain it to the bottom. But if he have no choice in the 
case, if there be no alternative presented to him but a 
dereliction of duty or the opprobrium of those who are 
denominated the world, he merits the contempt as well 
as the indignation of his country who can hesitate which 
to embrace. 


One could not require a better illustration of that 
faculty of ‘apparently deep self-conviction”’ which 
Wirt had noted in the Chief Justice. 

Finally, it must be owned that Burr’s case of- 
fered Marshall a tempting opportunity to try out 
the devotion of Republicans to that ideal of judi- 
cial deportment which had led them so vehemently 
to criticize Justice Chase and to charge him with 


THE TRIAL OF AARON BURR 113 


being “‘oppressive,”’ with refusing to give counsel 
for defense an opportunity to be heard, with trans- 
gressing the state law of procedure, with showing 
too great liking for Common Law ideas of sedi- 
tion, with setting up the President as a sort of 
monarch beyond the reach of judicial process. 
Marshall’s conduct of Burr’s trial now exactly 
reversed every one of these grounds of complaint. 
Whether he intended it or not, it was a neat turning 
of the tables. 


But Jefferson, who was at once both the most / 


theoretical and the least logical of men, /was of 
course hardly prepared to see matters in that light. 
As soon as the news reached him of Burr’s ac- 
quittal, he ordered Hay to press the indictment for 
misdemeanor — not for the purpose of convicting 
Burr, but of getting the evidence down in a form 
in which it should be available for impeachment 
proceedings against Marshall. For some weeks 
longer, therefore, the Chief Justice sat listening 
to evidence which was to be used against himself. 
But the impeachment never came, for a chain is 
only as strong as its weakest link, and the weak- 
est link in the combination against the Chief Jus- 
tice was a very fragile one indeed — the iniquitous 


Wilkinson. Even the faithful and melancholy Hay 
8 


) 


114 MARSHALL AND THE CONSTITUTION 


finally abandoned him. ‘The declaration which I 
made in court in his favor some time ago,” he 
wrote the President, “was precipitate. ... My 
confidence in him is destroyed. . . . I am sorry 
for it, on his account, on the public account, and 
because you have expressed opinions in his favor.” 
It was obviously impossible to impeach the Chief 
Justice for having prevented the hanging of Aaron — 
Burr on the testimony of such a miscreant. 


Though the years immediately following the 
Burr trial were not a time of conspicuous activity 
for Marshall, they paved the way in more than one 
direction for his later achievement. Jefferson’s re- 
tirement from the Presidency at last relieved the 
Chief Justice from the warping influence of a hate- 
ful personal contest and from anxiety for his official 
security. Jefferson’s successors were men more will- 
ing to identify the cause of the Federal Judiciary 
with that of national unity. Better still, the War 
oi 1812 brought about the demise of the Feder- 
alist party and thus cleared the Court of every ° 
suspicion of partisan bias. Henceforth the great 
political issue was the general one of the nature of 
the Union and the Constitution, a field in which 
Marshall’s talent for debate made him master. 


THE TRIAL OF AARON BURR 115 


In the meantime the Court was acquiring that 
personnel which it was to retain almost intact for 
nearly twenty years; and, although the new re- 
cruits came from the ranks of his former party foes, 
Marshall had little trouble in bringing their views 
into general conformity with his own constitution- 
al creed. Nor was his triumph an exclusively 
personal one. He was aided in very large measure 
by the fact that the war had brought particularism 
temporarily into discredit in all sections of the 
country. Of Marshall’s associates in 1812, Justice 
Washington alone had come to the bench earlier, 
yet he was content to speak through the mouth of 
his illustrious colleague, save on the notable occa- 
sion when he led the only revolt of a majority of 
the Court from the Chief Justice’s leadership in the 
field of Constitutional Law.' Johnson of South 
Carolina, a man of no little personal vanity, af- 
fected a greater independence, for which he was 
on one occasion warmly congratulated by Jefferson; 
yet even his separate opinions, though they some- 
times challenge Marshall’s more sweeping premises 
and bolder method of reasoning, are after all most- 
ly concurring ones. Marshall’s really invaluable 


t This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 
(1827). 


116 MARSHALL AND THE CONSTITUTION 


aid among his associates was Joseph Story, who 
in 1811, at the age of thirty-two, was appointed 
by Madison in succession to Cushing. Still im- 
mature, enthusiastically willing to learn, warmly 
affectionate, and with his views on constitutional 
issues as yet unformed, Story feli at once under 
the spell of Marshall’s equally gentle but vastly 
more resolute personality; and the result was one 
of the most fruitful friendships of our history. 
Marshall’s “‘original bias,’’ to quote Story’s own 
words, “‘as well as the choice of his mind, was to 
general principles and comprehensive views, rather 


> 


than to technical or recondite learning.” Story’s 
own bias, which was supported by his prodigious 
industry, was just the reverse. The two men thus 
supplemented each other admirably. A tradition 
of some venerability represents Story as having 
said that Marshall was wont to remark: “Now 
Story, that is the law; you find the precedents for 
it.”’ Whether true or not, the tale at least illus- 
trates the truth. Marshall owed to counsel a some- 
what similar debt in the way of leading up to his 
decisions, for, as Story points out, “‘he was solicit- 
ous to hear arguments and not to decide cases with- 
out them, nor did any judge ever profit more by 
them-”’ But in the field of Constitutional Law, at 


THE TRIAL OF AARON BURR 11? 


least, Marshall used counsel’s argument not so much 
to indicate what his own judicial goal ought to be 
as to discover the best route thereto — often, in- 
deed, through the welcome stimulus which a clash 
of views gave to his reasoning powers. 

Though the wealth of available legal talent at 
this period was impressively illustrated in connec- 
tion both with Chase’s impeachment and with 
Burr’s trial, yet on neither of these occasions ap- 
peared William Pinkney of Maryland, the attorney 
to whom Marshall acknowledged his greatest in- 
debtedness, and who was universally acknowledged 
to be the leader of the American Bar from 1810 
until his death twelve years later. Besides being a 
great lawyer, Pinkney was also a notable person- 
ality, as George Ticknor’s sketch of him as he 
appeared before the Supreme Court in 1815 goes 
to prove: 


You must imagine, if you can, a man formed on nature’s 
most liberal scale, who at the age of 50 is possessed with 
the ambition of being a pretty fellow, wears corsets to 
diminish his bulk, uses cosmetics, as he told Mrs. Gore, 
to smooth and soften a skin growing somewhat wrinkled 
and rigid with age, dresses in a style which would be 
thought foppish in a much younger man. You must 
imagine such a man standing before the gravest tribu- 
nal in the land, and engaged in causes of the deepest 


118 MARSHALL AND THE CONSTITUTION 


moment; but still apparently thinking how he can de- 
claim like a practised rhetorician in the London Cockpit, 
which he used to frequent. Yet you must, at the same 
time, imagine his declamation to be chaste and precise 
in its language and cogent, logical and learned in its 
argument, free from the artifice and affectation of his 
manner, and in short, opposite to what you might fairly 
have expected from his first appearance and tones. 
And when you have compounded these inconsistencies 
in your imagination, and united qualities which on com- 
mon occasions nature seems to hold asunder, you will, 
perhaps, begin to form some idea of what Mr. Pinkney is. 


Such was the man whom Marshall, Story, and 
Taney all considered the greatest lawyer who had 
‘ever appeared before the Supreme Court. 

At the close of the War of 1812, Marshall, 
though he had decided many important questions 
of International Law, nevertheless found him- 
self only at the threshold of his real fame. Yet 
even thus early he had indicated his point of view. 
Thus in the case of the United States vs. Peters,” 
which was decided in 1809, the question before the 
Court was whether a mandamus should issue to the 
United States District Judge of Pennsylvania order- 
ing him to enforce, in the face of the opposition of 


I Two famous decisions of Marshall’s in this field are those in the 
Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of 
the Nereide, 9 ib., 388. 

25 Cranch, 136. 


THE TRIAL OF AARON BURR 119 


the state Government, a decision handed down in a 
prize case more than thirty years before by the old 
Committee of Appeals of the Continental Congress. 
Marshall answered the question affirmatively, say- 
ing: “If the legislatures of the several states may, 
at will, annul the judgments of the courts of the 
United States and destroy the rights acquired under 
those judgments, the Constitution itself becomes a 
solemn mockery, and the nation is deprived of the 
means of enforcing its laws by the instrumentality 
of its own tribunals.”’ 

Marshall’s decision evoked a warm protest from 
the Pennsylvania Legislature and led to a proposal 
of amendment to the Constitution providing “‘an 
impartial tribunal” between the General Govern- 
ment and the States; and these expressions of dis- 
sent in turn brought the Virginia Assembly to the 
defense of the Supreme Court. 


The commission to whom was referred the communica- 
tion of the governor of Pennsylvania [reads the Virginia 
document] .. . are of the opinion that a tribunal is al- 
ready provided by the Constitution of the United States, 
to wit; the Supreme Court, more eminently qualified from 
their habits and duties, from the mode of their selection. 
and from the tenure of their offices, to decide the disputes 
aforesaid in an enlightened and impartial manner than 
any other tribunal which could be created. 


120 MARSHALL AND THE CONSTITUTION 


The members of the Supreme Court are selected from 
those in the United States who are most celebrated for 
virtue and legal learning. . . . The duties they have 
to perform lead them necessarily to the most enlarged 
and accurate acquaintance with the jurisdiction of the 
federal and several State courts together, and with the 
admirable symmetry of our government. The tenure 
of their offices enables them to pronounce the sound and 
correct opinions they have formed, without fear, favor 
or partiality. 


Was it coincidence or something more that dur- 
ing Marshall’s incumbency Virginia paid her one 
and only tribute to the impartiality of the Su- 
preme Court while Burr’s acquittal was still vivid 
in the minds of all? Or was it due to the fact 
that “‘the Great Lama of the Little Mountain” — 
to use Marshall’s disrespectful appellation for 
Jefferson — had not yet converted the Virginia 
Court of Appeals into the angry oracle of his own 
unrelenting hatred of the Chief Justice? Whatever 
the reason, within five years Virginia’s attitude 
had again shifted, and she had become once more 
what she had been in 1798-99, the rallying point of 
the forces of Confederation and State Rights. 


) 
| 


CHAPTER V 


THE TENETS OF NATIONALISM 


|“ Joun Marsuatz stands in history as one of that 


small group of men who have founded States. He 


| was a nation-maker, a state-builder. His monu- 
| ment is in the history of the United States and his 


name is written upon the Constitution of his coun- 
try.” So spoke Senator Lodge, on John Marshall 
Day, February 4, 1901. “I should feela... 


doubt,’ declared Justice Holmes on the same oc- 


-easion, ‘“‘whether, after Hamilton and the Con- 


stitution itself, Marshall’s work proved more than 


_a strong intellect, a good style, personal ascend- 


ancy in his court, courage, justice, and the con- 
victions of his party.” Both these divergent esti- 


_ mates of the great Chief Justice have their value. 
It is well to be reminded that Marshall’s task lay 
_ within the four corners of the Constitution, whose 
purposes he did not originate, especially since no 


one would have been quicker than himself te 
121 


122 MARSHALL AND THE CONSTITUTION 


disown praise implying anything different. None 
the less it was no ordinary skill and courage which, 
assisted by great office, gave enduring definition to 
the purposes of the Constitution at the very time 
when the whole trend of public opinion was setting 
in most strongly against them. It must not be for- 
gotten that Hamilton, whose name Justice Holmes 
invokes in his somewhat too grudging encomium 
of Marshall, had pronounced the Constitution “a 
frail and worthless fabric.” 

Marshall’s own outlook upon his task sprang in 
great part from a profound conviction of calling. 
He was thoroughly persuaded that he knew the 
intentions of the framers of the Constitution — the 
intentions which had been wrought into the in- 
strument itself —and he was equally determined 
that these intentions should prevail. For this reason 
he refused to regard his office merely as a judicial 
tribunal; it was a platform from which to pro- 
mulgate sound constitutional principles, the very 
cathedra indeed of constitutional orthodoxy. Not 
one of the cases which elicited his great opinions 
but might easily have been decided on compara- 
tively narrow grounds in precisely the same way 
in which he decided it on broad, general principles, 
but with the probable result that it would never 


‘THE TENETS OF NATIONALISM 123 


again have been heard of outside the law courts. 
To take a timid or obscure way to a merely tenta- 
tive goal would have been at variance equally with 
Marshall’s belief in his mission and with his instincts - 
asa great debater. Hence he forged his weapon — 
the obiter dictum — by whose broad strokes was 
hewn the highroad of a national destiny. 
Marshall’s task naturally was not performed in 
vacuo: he owed much to the preconceptions of his 
contemporaries. His invariable quest, as students 
of his opinions are soon aware, was for the axio- 
matic, for absolute principles, and in this inquiry 
he met the intellectual demands of a period whose 
first minds still owned the sway of the syllogism 


© 


and still loved what Bacon called the “spacious 
liberty of generalities.”” In Marshall’s method — 
as in the older syllogistic logic, whose phraseology 
begins to sound somewhat strange to twentieth 


century ears — the essential operation consisted 


« « 


in eliminating the “accidental” or “irrelevant” 
elements from the “‘significant”’ facts of a case, 
and then recognizing that this particular case had 
been foreseen and provided for in a general rule of 
law. Proceeding in this way Marshall was able to 
build up a body of thought the internal consist- 


ency of which, even when it did not convince, yet 


124 MARSHALL AND THE CONSTITUTION 


baffled the only sort of criticism which contem- 
poraries were disposed to apply. Listen, for in. 
stance, to the despairing cry of John Randolph of 
Roanoke: “‘ All wrong,”’ said he of one of Marshall’s 
opinions, “‘all wrong, but no man in the United 
States can tell why or wherein.’ 

Marshall found his first opportunity to ebburais 
the tenets of his nationalistic creed in the case of 
M’Culloch vs. Maryland, which was decided at the 
same term with the Dartmouth College case and 
that of Sturges vs. Crowinshield — the greatest six 
weeks in the history of the Court. The question 
immediately involved was whether the State of 
Maryland had the right to tax the notes issued by 
the branch which the Bank of the United States 
had recently established at Baltimore. But this 
question raised the further one whether the United 
States had in the first place the right to charter the 
Bank and to authorize it to establish branches with- 
in the States. The outcome turned on the inter- 
pretation to be given the “‘necessary and proper” 
clause of the Constitution. 

The last two questions were in 1819 by no means 
novel. In the Federalist itself Hamilton had boldly 
asked, “‘Who is to judge of the necessity and pro- 
priety of the laws to be passed for executing the 


| sary and proper 
_ clause was intended to indicate that the National 


THE TENETS OF NATIONALISM 125 


powers of the Union?” and had announced that 


“the National Government, like every other, must 
judge in the first instance, of the proper exercise 


| of its powers, and its constituents in the last,” a 


view which seems hardly to leave room even for 
judicial control. Three years later as Secretary of 


_ the Treasury, Hamilton had brought forward the 


proposal which soon led te the chartering of the 


Bank of 1791. The measure precipitated the first 
great discussion over the interpretation of the new 
| Constitution. Hamilton owned that Congress had 


no specifically granted power to charter a bank but 


contended that such an institution was 1 “neces- 
sary and proper” means for carrying out certain 
of the enumerated powers of the National Govern- 
ment such, for instance, as borrowing money and 


issuing a currency. For, said he in effect, “neces- 


29 « 


signify “‘“convenient,”’ and the 
Government should enjoy a wide range of choice 
in the selection of means for carrying out its enu- 
merated powers. Jefferson, on the other hand, 
maintained that the “‘necessary and proper” clause 
was a restrictive clause, meant to safeguard the 


rights of the States, that a law in order to be 


“necessary and proper” must be both “necessary ” 


126 MARSHALL AND THE CONSTITUTION 


and “‘proper,” and that both terms ought to be 
construed narrowly. Jefferson’s opposition, how- 
ever, proved unavailing, and the banking institu- 
tion which was created continued till 1811 without 
its validity being once tested in the courts. 

The second Bank of the United States, whose 
branch Maryland was now trying to tax, received 
its charter in 1816 from President Madison. Well 
might John Quincy Adams exclaim that the “‘Re- 
publicans had outfederalized the Federalists!”” Yet 
the gibe was premature. The country at large was 
as yet blind to the responsibilities of nationality. 
That vision of national unity which indubitably 
underlies the Constitution was after all the vision 
of an aristocracy conscious of a solidarity of in- 
terests transcending state lines. It is equally true 
that until the Civil War, at the earliest, the great 
mass of Americans still felt themselves to be 
first of all citizens of their particular States. Nor 
did this individualistic bias long remain in want of 
leadership capable of giving it articulate expres- 
sion. The amount of political talent which existed 
within the State of Virginia alone in the first gener- 
ation of our national history is amazing to contem- 
plate, but this talent unfortunately exhibited one 
most damaging blemish. [The intense individualism 


THE TENETS OF NATIONALISM 127 


of the planter-aristocrat could not tolerate in any 
possible situation the idea of a control which he 
could not himself ultimately either direct or rej ect} 
In the Virginia and Kentucky resolutions of 1798 
and 1799, which regard the Constitution as a com- 
pact of sovereign States and the National Govern- 
ment merely as their agent, the particularistic 
outlook definitely received a constitutional creed 
which in time was to become, at least in the South. 
a gloss upon the Constitution regarded as fully 
as authoritative as the original instrument. This 
recognition of state sovereignty was, indeed, some- 
what delayed by the federalization of the Republi- 
can party in consequence of the capture of the 
National Government by Virginia in 1800. But in 
1819 the march toward dissolution and civil war 
which had begun at the summons of Jefferson 
was now definitely resumed. This was the year of 
the congressional struggle over the admission of 
Missouri, the most important result of which was 
the discovery by the slave owners that the greatest 
security of slavery lay in the powers of the States 
and that its greatest danger lay in those of the Na- 
tional Government. Henceforth the largest prop- 
erty interest of the country stood almost solidly 
behind State Rights. 


128 MARSHALL AND THE CONSTITUTION 


It was at this critical moment that chance pre- 
sented Marshall with the opportunity to place 
the opposing doctrine of nationalism on the high 
plane of judicial decision. The arguments in the 
Bank case,* which began on February 22, 1819, and 
lasted nine days, brought together a “constella- 
tion of lawyers”’ such as had never appeared before 
in a single case. The Bank was represented by 
Pinkney, Webster, and Wirt; the State, by Luther 
Martin, Hopkinson, and Walter Jones of the Dis- 
trict of Columbia bar. In arguing for the State, 
Hopkinson urged the restrictive view of the “‘neces- 
sary and proper” clause and sought to reduce to an 
absurdity the doctrine of “implied rights.”” The 
Bank, continued Hopkinson, “this creature of 
construction,” claims by further implication “the 
right to enter the territory of a State without its 
consent”’ and to establish there a branch; then, by 
yet another implication, the branch claims exemp- 
tion from taxation. “‘Itis thus with the famous fig- 
tree of India, whose branches shoot from the trunk. 
to a considerable distance, then drop to the earth, 
where they take root and become trees from which 
also other branches shoot . . ., until gradually a 
vast surface is covered, and everything perishes 

t M’Culloch vs. Maryland (1819), 4 Wheaton, 316. 


THE TENETS OF NATIONALISM 129 


in the spreading shade.”’ But even granting that 
Congress did have the right to charter the Bank, 
still that fact would not exempt the institution 
from taxation by any State within which it held 
property. “The exercise of the one sovereign power 
cannot be controlled by the exercise of the other.”’ 

On the other side, Pinkney made the chief argu- 
ment in behalf of the Bank. “Mr. Pinkney,” says 
Justice Story, ‘‘rose on Monday to conclude the 
argument; he spoke all that day and yesterday and 
will probably conclude to-day. I never in my whole 
life heard a greater speech; it was worth a journey 
from Salem to hear it; his elocution was exces- 
sively vehement; but his eloquence was over- 
whelming. His language, his style, his figures, his 
argument, were most brilliant and sparkling. He 
spoke like a great statesman and patriot and a 
sound constitutional lawyer. All the cobwebs of 
sophistryship and metaphysics about State Rights 
and State Sovereignty he brushed away with a 
mighty besom.” 

Pinkney closed on the 3d of March, and on 
the 6th Marshall handed down his most famous 
opinion. He condensed Pinkney’s three-day argu- 
ment into a pamphlet which may be easily read 


by the instructed layman in half an hour, for, as is 
9 


130 MARSHALL AND THE CONSTITUTION 


invariably the case with Marshall, his condensation 
made for greater clarity. In this opinion he also 
ives evidence, in their highest form, of his other 
notable qualities as a judicial stylist: his “tiger in- 
stinct for the jugular vein”; his rigorous pursuit 
of logical consequences; his power of stating a case, 
wherein he is rivaled only by Mansfield; his scorn 
of the qualifying “but’s,”’ “if’s,” and “though’s”’; 
the pith and balance of his phrasing, a reminiscence 
of his early days with Pope; the developing momen- 
tum of his argument; above all, his audacious use 
of the obiter dictum. Marshall’s later opinion in 
Gibbons vs. Ogden is, it is true, In some respects 
a greater intellectual performance, but it does not 
equal this earlier opinion in those qualities of form 
which attract the amateur and stir the admiration 
of posterity. 

At the very outset of his argument in the Bank 
case Marshall singled out the question the answer 
to which must control all interpretation of the 
Constitution: Was the Constitution, as contended 
by counsel for Maryland, “‘an act of sovereign 
and independent States’? whose political interests 
must be jealously safeguarded in its construction, 
or was it an emanation from the American people 
and designed for their benefit? Marshall answered 


| 
' 


THE TENETS OF NATIONALISM 131 


that the Constitution, by its own declaration, was 
“ordained and established” in the name of the peo- 
ple, “‘in order to form a more perfect union, establish 
justice, insure domestic tranquillity, and secure the 
blessings of liberty to themselves and their poster- 
ity.” Nor did he consider the argument “that the 
people had already surrendered al] thet powers to 
the State Sovereignties and had nothing more to 
give,” a persuasive one, for “surely, the question 
whether they may resume and modify the power 
granted to the government does not remain to be 
settled in this country. Much more might the 
legitimacy of the General Government be doubted, 
had it been created by the States. The powers 
delegated to the State sovereignties were to be ex- 
ercised by themselves, not by a distinct and inde- 
pendent sovereignty created by them.” ‘‘The Goy- 
ernment of the Union, then,”’ Marshail proceeded, 
“is emphatically . . . a government of the peo- 
ple. In form and in substance it emanates from 
them. Its powers are granted by them, and are 
to be exercised on them, and for their benefit.” 
And what was the nature of this Government? “If 
any one proposition could command the universal 
assent of mankind we might expect it would be 
this: that the government of the Union, though 


132 MARSHALL AND THE CONSTITUTION 


limited in its powers, is supreme within the sphere 
of its action. This would seem to result necessarily 
from its nature. It is the government of all; its 
powers are delegated by all; it represents all and 
acts for all.” However the question had not been 
left to reason. ‘‘The people have in express terms 
decided it by saying: ‘This Constitution and the 
laws of the United States which shall be made in 
pursuance thereof . . . shall be the supreme Law 
of the Land.’” 

But a Government which is supreme must have 
the right to choose the means by which to make 
its supremacy effective; and indeed, at this point 
again the Constitution comes to the aid of reason 
by declaring specifically that Congress may make 


« 


all laws ‘‘necessary and proper” for carrying into 
execution any of the powers of the General Gov- 
ernment. Counsel for Maryland would read this 
clause as limiting the right which it recognized to 
the choice only of such means of execution as are 
indispensable; they would treat the word “neces- 
sary” as controlling the clause and to this they 
would affix the word “absolutely.”’ ‘‘Such is the 
character of human language,” rejoins the Chief 
Justice, “‘that no word conveys to the mind in 
all situations, one single definite idea,” and the 


THE TENETS OF NATIONALISM 133 


word “necessary,” “like others, is used in various 
senses,” so that its context becomes most material 
in determining its significance. 

And what is its context on this occasion? ‘‘The 
subject is the execution of those great powers on 
which the welfare of a nation essentially depends.”’ 
The provision occurs “‘in a Constitution intended 
to endure for ages to come and consequently to 
be adapted to the various crises of human affairs.” 
The purpose of the clause therefore is not to impair 
the right of Congress “‘to exercise its best judg- 
ment in the selection of measures to carry into 
execution the constitutional powers of the Govern- 
ment,” but rather “‘to remove all doubts respect- 
ing the right to legislate on that vast mass of 
incidental powers which must be involved in the 
Constitution, if that instrument be not a splendid 
bauble. .. . Let the end be legitimate, let it be 
within the scope of the Constitutien and all means 
which are appropriate, which are plainly adapted 
to that end, which are not prohibited hut con- 
sist with the letter and spirit of the Constitution, 
are constitutional.” 

But was the Act of Maryland which taxed the 
Bank in conflict with the Act of Congress which 
established it? If so, must the State yield tc 


134 MARSHALL AND THE CONSTITUTION 


Congress? In approaching this question Marshall 
again laid the basis for as sweeping a decision as 
possible. The terms in which the Maryland stat- 
ute was couched indicated clearly that it was di- 
rected specifically against the Bank, and it might 
easily have been set aside on that ground. But 
Marshall went much further and iaid down the 
principle that the instrumentalities of the National 
Government are never subject to taxation by the 
States in any form whatsoever, and for two reasons. 
In the first place, “those means are not given by 
the people of a particular State . . . but by the 
people of all the States. They are given by all for 
the benefit of all,’ and owe their presence in the 
State not to the State’s permission but to a higher 
authority. The State of Maryland therefore never 
had the power to tax the Bank in the first place. 
Yet waiving this theory, there was, in the second 
place, flat incompatibility between the Act of 
Maryland and the Act of Congress, not simply be- 
cause of the specific operation of the former, but 
rather because of the implied claim which it made 
for state authority. “That the power to tax in- 
volves the power to destroy,’ Marshall continued; 
“that the power to destroy may defeat and render 
useless the power to create; that there is a plain 


THE TENETS OF NATIONALISM 135 


repugnance in conferring on one government a 
power to control the constitutional measures of 
another, which other, with respect to those very 
measures is declared to be supreme over that which 
exerts the control, are propositions not to be de- 
nied.”’ Nor indeed is the sovereignty of the State 
confined to taxation. ‘That is not the only mode 
in which it might be displayed. The question 
is in truth, a question of supremacy, and if the 
right of the States to tax the means employed by 
the General Government be conceded, the decla- 
ration that the Constitutien and the laws made 
in pursuance thereof shall be supreme law of the 
land, is empty and unmeaning declamation. . . . 
We are unanimously of opinion,”’ concluded the 
Chief Justice, “that thelaw . . . of Maryland, im- 
posing a tax on the Bank of the United States is 
unconstitutional and void.” 

Five years later, in the case of Gibbons vs. 
Ogden,* known to contemporaries as the ‘“‘Steam- 
boat case,’’ Marshall received the opportunity to 
apply his principles of constitutional construction 


« 


to the power of Congress to regulate “commerce 
among the States.” For a quarter of a century 
Robert R. Livingston and Robert Fulton and 


t9 Wheaton, 1. 


136 MARSHALL AND THE CONSTITUTION 


their successors had enjoyed from the Legislature 
of New York a grant of the exclusive right to run 
steamboats on the waters of the State, and in this 
case one of their licensees, Ogden, was seeking to 
prevent Gibbons, who had steamers in the coasting 
trade under an Act of Congress, from operating 
them on the Hudson in trade between points in 
New York and New Jersey. A circumstance which 
made the case the more critical was that New 
Jersey and Connecticut had each passed retalia- 
tory statutes excluding from their waters any 
vessel licensed under the Fulton-Livingston mo- 
nopoly. The condition of interstate commercial 
warfare which thus threatened was not unlike that 
which had originally operated so potently to bring 
about the Constitution. 

The case of Gibbons vs. Ogden was argued in the 
early daysof February, 1824, with Attorney-General 
Wirt and Daniel Webster against the grant, while 
two famous New York lawyers of the day, Thomas 
Addis Emmet, brother of the Irish patriot, and 
Thomas J. Oakley, acted as Ogden’s counsel. The 
arguments have the importance necessarily at- 
taching to a careful examination of a novel legal 
question of the first magnitude by learned and 
acute minds, but some of the claims that have been 


THE TENETS OF NATIONALISM 137 


made for these arguments, and especially for Web- 
ster’s effort, hardly sustain investigation. Webster, 
never in any case apt to regard his own perform- 
ance overcritically, seems in later years to have 
been persuaded that the Chief Justice’s opinion 
“followed closely the track” of his argument on 
this occasion; and it is true that Marshall expressed 
sympathy with Webster’s contention that Congress 
may regulate as truly by inaction as by action, since 
inaction may indicate its wish that the matter go 
unregulated; but the Chief Justice did not explicitly 
adopt this idea, and the major part of his opin- 
jon was arunning refutation of Emmet’s argument, 
which in turn was only an elaboration of Chancellor 
Kent’s opinion upon the same subject in the New 
York courts.* In other words, this was one of those 
eases in which Marshall’s indebtedness to counsel 
was far less for ideas than for the stimulation which 
his own powers always received from discussion; and 
the result is his profoundest, most statesmanlike 
opinion, from whose doctrines the Court has at times 
deviated, but only to return to them, until today it 
is more nearly than ever before the established law 
on the many points covered by its dicta. 


t See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also Keni’n 
Commentaries, 1, 432-38. 


138 MARSHALL AND THE CONSTITUTION 


Marshall pronounced the Fulton-Livingston mo- 
nopoly inoperative so far as it concerned vessels 
enrolled under the Act of Congress to engage in the 
coasting trade; but in arriving at this very sim- 
ple result his opinion takes the broadest possible 
range. At the very outset Marshall flatly con- 
tradicts Kent’s proposition that the powers of 
the General Government, as representing a grant 
by sovereignties, must be strictly construed. The 
Constitution, says he, “contains ai enumeration of 
powers expressly granted by the people to their 
government,”’ and there is not a word in it which 
lends any countenance to the idea that these 
powers should be strictly interpreted. As men 
whose intentions required no concealment, those 
who framed and adopted the Constitution “must 
be understood to have employed words in their 
natural sense and to have intended what they 
said”; but if, from the inherent imperfection of 
language, doubts were at any time to arise “Tre- 
specting the extent of any given power,” then the 
known purposes of the instrument should control 
the construction put on its phraseology. “The 
grant does not convey power which might be bene- 
ficial to the grantor if retained by himself. . . 
but is an investment of power for the general 


THE TENETS OF NATIONALISM 139 


advantage in the hands of agents selected for the 
purpose, which power can never be exercised by the 
people themselves, but must be placed in the hands 


b 


of agents or remain dormant.”’ In no other of his 
opinions did Marshall so clearly bring out the logi- 
cal connection between the principle of liberal con- 
struction of the Constitution and the doctrine that 
it is an ordinance of the American people. 
Turning then to the Constitution, Marshall asks, 
“What is commerce?” ‘Counsel for appellee,” 


« 


he recites, “would limit it to traffic, to buying and 
selling,’ to which he answers that “‘this would re- 
strict a general term . . . to one of its significa- 
tions. Commerce,”’ he continues, ‘‘undoubtedly is 
traffic, but it is something more — it is inter- 
course,’ and so includes navigation. And what is 
the power of Congress over commerce? “It is the 
power to regulate, that is, the power to prescribe 
the rule by which commerce is to be governed.” 
It is a power “‘complete in itself,’’ exercisable “to 
its utmost extent,”’ and without limitations “‘other 
than are prescribed by the Constitution. ... If, 
as has always been understood, the sovereignty of 
Congress, though limited to specified objects, is 
plenary as to those objects, the power over com- 
merce with foreign nations and among the several 


140 MARSHALL AND THE CONSTITUTION 


States is vested in Congress as absolutely as it 
would be in a single government having in its con- 
stitution the same restrictions on the exercise of 
power as are found in the Constitution of the 
United States.’’. The power, therefore, is not to be 
confined by state lines but acts upon its subject- 
matter wherever it is to be found. “It may, of 
consequence, pass the jurisdictional line of New 
York and act upon the very waters to which the 
prohibition now under consideration applies.” It 
is a power to be exercised within the States and 
not merely at their frontiers. 

But was it sufficient for Marshall merely to de- 
fine the power of Congress? Must not the power 
of the State also be considered? At least, Ogden’s 
attorneys had argued, the mere existence in Congress 
of the power to regulate commerce among the States 
did not prevent New York from exercising the same 
power, through legislation operating upon subject 
matter within its own boundaries. No doubt, he 
concedes, the States have the right to enact many 
kinds of laws which will incidentally affect com- 
merce among the States, such for instance as quar- 
antine and health laws, laws regulating bridges 
and ferries, and so on; but this they do by virtue 
of their power of “internal police,” not by virtue 


THE TENETS OF NATIONALISM 141 


of a ““concurrent’’ power over commerce, foreign 
and interstate. And, indeed, New York may have 
granted Fulton and Livingston their monopoly in 
exercise of this power, in which case its validity 
would depend upon its not conflicting with an 
Act of Congress regulating commerce. For should 
such conflict exist, the State enactment, though 
passed “‘in the exercise of its acknowledged sover- 
eignty,”» must give place in consequence of the 
supremacy conferred by the Constitution upon all 
acts of Congress in pursuance of it, over all state 
laws whatsoever. 

The opinion then proceeds to the consideration 
of the Act of Congress relied upon by Gibbons. 
This, Ogden’s attorneys contended, merely con- 
ferred the American character upon vessels already 
possessed of the right to engage in the coasting 
trade; Marshall, on the contrary, held that it con- 
ferred the right itself, together with the auxiliary 
right of navigating the waters of the United States; 
whence it followed that New York was powerless 
to exclude Gibbons’s vessels from the Hudson. In- 
cidentally Marshall indicated his opinion that Con- 
gress’s power extended to the carriage of passengers 
as well as of goods and to vessels propelled by steam 
as well as to those driven by wind. “The one ele- 


142 MARSHALL AND THE CONSTITUTION 


ment,”’ said he, “‘may be as legitimately used as the 
other for every commercia) purpose authorized by 
the laws of the Union.” 

Two years later, in the case of Brown vs. Mary- 
land, Marshall laid down his famous doctrine that 
so long as goods introduced into a State in the 
course of foreign trade remain in the hands of the 
importer and in the original package, they are not 
subject to taxation by the State. This doctrine is 
interesting for two reasons. In the first place, it 
implies the further principle that an attempt by 
a State to tax interstate or foreign commerce is 
tantamount to an attempt to regulate such com- 
merce, and is consequently void. In other words, 
the principle of the exclusiveness of Congress’s 
power to regulate commerce among the States and 
with foreign nations, which is advanced by way of 
dictum in Gibbons vs. Ogden, becomes in Brown vs. 
Maryland a ground of decision. It is a principle 
which has proved of the utmost importance in keep- 
ing the field of national power clear of encumber- 
ing state legislation against the day when Congress 
should elect to step in and assume effective con- 
trol. Nor can there be much doubt that the result 
was intended by the framers of the Constitution. 

1 12 Wheaton, 419. 


THE TENETS OF NATIONALISM 143 


Yn the second place, however, from anothe: 
point of view this “original package doctrine”’ is 
only an extension of the immunity from state taxa- 
tion established in M’Culloch vs. Maryland for in- 
strumentalities of the National Government. It 
thus reflects the principle implied by that decision: 
where power exists to any degree or for any pur- 
pose, it exists to every degree and for every purpose; 
or, to quote Marshall’s own words in Brown vs. 
Maryland, “‘ questions of power do not depend upon 
the degree to which it may be exercised; if it 
may be exercised at all, it may be exercised at the 
will of those in whose hands it is placed.”” The at- 
titude of the Court nowadays, when it has to deal 
with state legislation, is very different. It takes the 
position thai abuse of power, in relation to private 
rights or to commerce, is excess of power and hence 
demands to be shown the substantial effect of 
legislation, not its mere formal justification.‘ In 
short, its inquiry is into facts. On the other hand, 
when dealing with congressional legislation, the 
Court has hitherto always followed Marshall’s bold- 
er method. Thus Congress may use its taxing 


T See Justice Bradley’s language in 122 U. S., 326; also the more 
recent case of Western Union Telegraph Company vs. Kan., 216 
1 S., 1. 


144 MARSHALL AND THE CONSTITUTION 


power to drive out unwholesome businesses, per- 
haps even to regulate labor within the States, and 
it may close the channels of interstate and foreign 
commerce to articles deemed by it injurious to 
the public health or morals. To date this dis- 
crepancy between the methods employed by the 
Court in passing upon the validity of legislation 
within the two fields of state and national power 
has afforded the latter a decided advantage. 

The great principles which Marshall developed 
in his interpretation of the Constitution from the 
side of national power and which after various ups 
and downs may be reckoned as part of the law of 
the land today, were the following: 


) 1. The Constitution is an ordinance of the people of 
the United States, and not a compact of States. 

2. Consequently it is to be interpreted with a view 
to securing a beneficial use of the powers which it creates, 
not with the purpose of safeguarding the prerogatives of 
state sovereignty. 

/ 3. The Constitution was further designed, as near 
as may be, “for immortality,” and hence was to be 
“adapted to the various crises of human affairs,”’ to be 
kept a commodious vehicle of the national life and not 
made the Procrustean bed of the nation. 

- 4. While the government which the Constitution 


tSee 195 U.S., 27; 188 U. S., 321; 227 U.S., 308. Cf. 247 U.S. 
251. 


THE TENETS OF NATIONALISM 145 


established is one of enumerated powers, as to those 
powers it is a sovereign government, both in its choice 
of the means by which to exercise its powers and in its 
supremacy over all colliding or antagonistic powers. 

5. The power of Congress to regulate commerce is an 
exclusive power, so that the States may not intrude 
upon this field even though Congress has not acted. _ 

6. The National Government and its instrumentali- 
ties are present within the States, not by the tolerance 
of the States, but by the supreme authority of the people 
of the United States. * 


Of these several principles, the first is obviously 
the most important and to a great extent the source 
of the others. Itis the principle of which Marshall, 
in face of the rising tide of State Rights, felt him- 
self to be in a peculiar sense the official custodian. 
Itis the principle which he had in mind in his noble 
plea at the close of the case of Gibbons vs. Ogden for 
a construction of the Constitution capable of main- 
taining its vitality and usefulness: 


owerful and ingenious minds [run his words], taking as 
postulates that the powers expressly granted to the 
Government of the Union are to be contracted by con- 
struction into the narrowest possible compass and that 
the original powers of the States are to be retained if any 
possible construction will retain them, may by a course 


t For the application of Marshall’s canons of constitutional inter- 
pretation in the field of treaty making, see the writer’s National 
Supremacy (N. Y., 1913), Chaps. III and IV.- 


$0 


146 MARSHALL AND THE CONSTITUTION 


of refined and metaphysical reasoning . . . explain away 
‘the Constitution of our country and leave it a mag- 
nificent structure indeed to look at, but totally unfit for 
use. They may so entangle and perplex the understand- 
ing as to obscure principles which were before thought 
quite plain, and induce doubts where, if the mind were 
to pursue its own course, none would be perceived. In 
such a case, it is peculiarly necessary to recur to safe 

‘ and fundamental principles. 


CHAPTER Vi 
THE SANCTITY OF CONTRACTS 


/Marsuatt’s work was one of conservation in so 
far as it was concerned with interpreting the Con- 
stitution in accord with the intention which its 
framers had of establishing an efficient National 
Government. But he found a task of restoration 
awaiting him in that great field of Constitution- 
al Law which defines state powers in relation to 
private rights. { 

To provide adequate safeguards for property and 
contracts against state legislative power was one 
of the most important objects of the framers, if 
indeed it was not the most important. Consider, 
for instance, a colloquy which occurred early in the 
Convention between Madison and Sherman of 
Connecticut. The latter had enumerated “the ob- 
jects of Union” as follows: “First, defense against 
foreign danger; secondly, against internal disputes 


and a resort to force; thirdly, treaties with foreign 
147 


148 MARSHALL AND THE CONSTITUTION 


nations; fourthly, regulating foreign commerce and 
drawing revenue fromit.” To this statement Madi- 
son demurred. The objects mentioned were im- 
portant, he admitted, but he “combined with them 
the necessity of providing more effectually for the 
securing of private rignts and the steady dispensa- 
tion of justice. Interferences with these were evils 
which had, more perhaps than anything else, pro- 
duced this Convention.” 

Marshall’s sympathy with this point of view we 
have already noted. Nor was Madison’s reference 
solely tothe then recent activity of state Legislatures 
in behalf of the much embarrassed but politically 
dominant small farmer class. He had also in mind 
that other and mere ancient practice of Legislatures 
of enacting so-called “special legislation,” that 
is, legislation altering under the standing law the 
rights of designated parties, and not infrequently 
to their serious detriment. Usually such legis- 
lation took the form of an intervention by the 
Legislature in private controversies pending in, or 
already decided by, the ordinary courts, with the re- 
sult that judgments were set aside, executions can- 
celed, new hearings granted, new rules of evidence 
introduced, void wills validated, valid contracts 


tSee supra, p. 34 ff. 


THE SANCTITY OF CONTRACTS 149 


voided, forfeitures pronounced — all by legisla- 
tive mandate. Since that day the courts have 
developed an interpretation of the principle of 
the separation of powers and have enunciated a 
theory of “due process of law,’ which renders 
this sort of legislative abuse quite impossible; but 
in 1787, though the principle of the separation 
of powers had received verbal recognition in sev- 
eral of the state Constitutions, no one as yet 
knew precisely what the term “legislative power” 
signified, and at that time judicial _review did 
not exist.‘ Hence those who wished to see this 
nuisance of special legislation abated felt not un- 
naturaily that the relief must come from some 
source external to the local governments, and they 
welcomed the movement for a new national Con- 
stitution as affording them their opportunity. 
The Constitution, in Article I, Section x, forbids 
the States to ““emit bills of credit, make anything 
but gold and silver a legal tender in payment of 
debts, pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts.” 
Until 1798, the provision generally regarded as 
offering the most promising weapon against special 


t On special legislation, see the writer’s Doctrine of Judicial Review 
(Princeton, 1914), pp. 36-37, 69-71. 


150 MARSHALL AND THE CONSTITUTION 


legislation was the ex post facto clause. In that 
year, however, in its decision in Calder vs. Bull the 
Court held that this clause “was not inserted to 
secure the citizen in his private rights of either 
property or contracts,’’ but only against certain 
kinds of penal legislation. The decision roused 
sharp criticism and the judges themselves seemed 
fairly to repent of it even in handing it down. 
Justice Chase, indeed, even went so far as to sug- 
gest, as a sort of stop-gap to the breach they were 
thus creating in the Constitution, the idea that, 
even in the absence of written constitutional re- 
strictions, the Social Compact as well as “the 
principles of our free republican governments” af- 
forded judicially enforcible limitations upon legis- 
lative power in favor of private rights. Then, in the 
years immediately following, several state courts, 
building upon this dictum, had definitely announced 
their intention of treating as void all legislation 
which they found unduly to disturb vested rights, 
especially if it was confined in its operation to 
specified parties.* 

Such was still the situation when the case of 


t In connection with this paragraph, see the writer’s article entitled 
The Basic Doctrine of American Constitutional Law, in the Michigan 
Law Review, February, 1914. Marshall once wrote Story regarding 


THE SANCTITY OF CONTRACTS 151 


Fletcher vs. Peck’ in 1810 raised before the Su- 
preme Court the question whether the Georgia 
Legislature had the right to rescind a land grant 
made by a preceding Legislature. On any of three 
grounds Marshall might easily have disposed of this 
ease before coming to the principal question. In 
the first place, it was palpably a moot case; that is 
to say, it was to the interest of the opposing 
parties to have the rescinding act set aside. The 
Court would not today take jurisdiction of such a 
ease, but Marshall does not even suggest such a 
solution of the question, though Justice Johnson 
does in his concurring opinion. In the second 
place, Georgia’s own claim to the lands had been 
most questionable, and consequently her right to 
grant them to others was equally dubious; but this, 
too, is an issue which Marshall avoids. Finally, 
the grant had been procured by corrupt means, 
but Marshall ruled that this was not a subject the 


his attitude toward Section x in 1787, as follows: ‘“‘The questions 
which were perpetually recurring in the State legislatures and which 
brought annually into doubt principles which I thought most sacred, 
which proved that everything was afloat, and that we had no safe 
anchorage ground, gave a high value in my estimation to that 
article of the Constitution which imposes restrictions on the States.’ 
Discourse. 
6 Cranch, 87. 


152 MARSHALL AND THE CONSTITUTION 


Court might enter upon; and for the ordinary 
run of-cases in which undue influence is alleged to 
have induced theenactment of a law, the ruling is 
clearly sound. But this was no ordinary case. The 
fraud asserted against the grant was a matter of 
universal notoriety; it was, indeed, the most re- 
sounding scandal of the generation; and surely 
judges may assume to know what is known to all 
and may act upon their knowledge. 

Furthermore, when one turns to the part of Mar- 
shall’s opinion which deals with the constitutional 
issue, one finds not a little evidence of personal 
predilection on the part of the Chief Justice. He 
starts out by declaring the rescinding act void as a 
violation of vested rights, of the underlying prin- 
ciples of society and government, and of the doc- 
trine of the separation of powers. Then he appar- 
ently realizes that a decision based on such grounds 
must be far less secure and much less generally 
available than one based on the words of the Con- 
stitution; whereupon he brings forward the obliga- 
tion of contracts clause. At once, however, he is 
confronted with the difficulty that the obligation 
of a contract is the obligation of a contract still 
to be fulfilled, and that a grant is an executed con- 
tract over and done with — functus officio. This 


THE SANCTITY OF CONTRACTS 153 


difficulty he meets by asserting that every grant is 
attended by an implied contract on the part of 
the grantor not to reassert his right to the thing 
granted. This. of course, is a palpable fiction on 
Marshall’s part, though certainly not an unreason- 
able one. For undoubtedly when a grant is made 
without stipulation to the contrary, both parties 
assume that it will be permanent. 

The greater difficulty arose from the fact that, 
whether implied or explicit, the contract before the 
Court was a public one. In the case of private 


contracts it is easy enough to distinguish the con- 


tract, as the agreement between the parties, from 
the obligation of the contract which comes from the 


law and holds the parties to their engagements. 
| But what law was there to hold Georgia to her 
| supposed agreement not to rescind the grant she 
had made? Not the Constitution of the United 


States unattended by any other law, since it pro- 
tects the obligation only after it has come into 
existence. Not the Constitution of Georgia as 


construed by her own courts, since they had sus- 
tained the rescinding act. Only one possibility re- 
mained; the State Constitution must be the source 


of the obligation — yes; but the State Constitution 
as it was construed by the United States Supreme 


154 MARSHALL AND THE CONSTITUTION 


Court in this very case, in the light of the “general 
principles of our political institutions.” In short 
the obligation is a moral one; and this moral obliga- 
tion is treated by Marshall as having been converted 
into a legal one by the United States Constitution. 

However, Marshall apparently fails to find en- 
tire satisfaction in this argument, for he next turns 
to the prohibition against bills of attainder and 
ex post facto laws with a question which mani- 
fests disapproval of the decision in Calder vs. Bull. 
Yet he hesitates to overrule Calder vs. Bull, and, 
indeed, even at the very end of his opinion he still 
declines to indicate clearly the basis of his decision. 
The State of Georgia, he says, “was restrained” 
from the passing of the rescinding act “either by 
general principles which are common to our free 
institutions, or by particular provisions of the Con- 
stitution of the United States.”’ It was not until 
nine years after Fletcher vs. Peck that this am- 
biguity was cleared up in the Dartmouth College 
case in 1819. 

The case of the Trustees of Dartmouth College 
vs. Woodward‘ was a New England product and 


t The following account of this case is based on J. M. Shirley’s 
Dartmouth College Causes (St. Louis, 1879) and on the official report, 
4 Wheaton, 518. 


THE SANCTITY OF CONTRACTS — 156 


redolent of the soil from which it sprang. In 1754 
the Reverend Eleazar Wheelock of Connecticut 
had established at his own expense a charity school 
for instructing Indians in the Christian religion; 
and so great was his success that he felt encouraged 
to extend the undertaking and to solicit donations 
in England. Again success rewarded his efforts; 
and in 1769 Governor Wentworth of New Hamp- 
shire, George III’s representative granted the new 
institution, which was now located at Hanover, 
New Hampshire, a charter incorporating twelve 
named persons as “The Trustees of Dartmouth 
College”’ with the power to govern the institution, 
appoint its officers, and fill all vacancies in their 
own body “forever.” 

For many years after the Revolution, the Trus- 
tees of Dartmouth College, several of whom were 
ministers, reflected the spirit of Congregationalism. 
Though this form of worship occupied almost the 
position of a state religion in New Hampshire, early 
in this period difficulties arose in the midst of the 
church at Hanover. A certain Samuel Hayes, or 
Haze, told a woman named Rachel Murch that her 
character was “‘as black as Hell,” and upon Ra- 
chel’s complaint to the session, he was “‘churched” 
for “breach of the Ninth Commandment and 


156 MARSHALL AND THE CONSTITUTION 


also for a violation of his covenant agreement.” 
This incident caused a rift which gradually de- 
veloped into something very like a schism in the 
local congregation, and this internal disagreement 
finally produced a split between Eleazar’s son, Dr. 
John Wheelock, who was now president of Dart- 
mouth College, and the Trustees of the institution. 
The result was that in August, 1815, the Trustees 
ousted Wheelock. 

The quarrel had thus far involved only Calvin- 
ists and Federalists, but in 1816 a new element was 
brought in by the interference of the Governor 
of New Hampshire, William Plumer, formerly a 
Federalist but now, since 1812, the leader of the 
Jeffersonian party in the State. In a message to 
the Legislature dated June 6, 1816, Plumer drew 
the attention of that body to Dartmouth Col- 
lege. ‘‘All literary establishments,” said he, “like 
everything human, if not duly attended to, are 
subject to decay. . . . As it [the charter of the 
College] emanated from royalty, it contained, as 
was natural it should, principles congenial to mon- 
archy,”’ and he cited particularly the power of the 
Board of Trustees to perpetuate itself. “‘ This last 
principle,”’ he continued, “is hostile to the spirit 
and genius of a free government. Sound policy 


THE SANCTITY OF CONTRACTS — 157 


therefore requires that the mode of election should 
| be changed and that Trustees in future should be 
elected by some other body of men. ... The 
College was formed for the public good, not for the 
benefit or emolument of its Trustees; and the right 
| to amend and improve acts of incorporation of this 
nature has been exercised by all governments, both 
monarchical and republican.” 

Plumer sent a copy of his message to Jeffer- 
_ son and received a characteristic answer in reply: 
_ “Tt is replete,” said the Republican sage, “with 
sound principles. . . . The idea that institutions 
| established for the use of the nation cannot be 
_ touched nor modified, even to make them answer 
| theirend .. . ismost absurd. ... Yet ourlaw- 
_ yers and priests generally inculcate this doctrine, 

and suppose that preceding generations held the 
earth more freely than we do; had a right to im- 
| pose laws on us, unalterable by ourselves; .. . 
in fine, that the earth belongs to the dead and 


> 


not to the living.” And so, too, apparently the 
majority of the Legislature believed; for by the 
_ measure which it promptly passed, in response to 
_Plumer’s message, the College was made Dart- 
mouth University, the number of its trustees was 


increased to twenty-one, the appointment of the 


158 MARSHALL AND THE CONSTITUTION 


additional members being given to the Governor, 
and a board of overseers, also largely of guber- 
natorial appointment, was created to supervise all 
important acts of the trustees. 

The friends of the College at once denounced the 
measure as void under both the State and the 
United States Constitution and soon made up 
a test case. In order to obtain the college seal, 
charter, and records, a mandate was issued early ia 
1817 by a local court to attach goods, to the value 
of $50,000, belonging to William H. Woodward, the 
Secretary and Treasurer of the ‘‘ University.’ This 
was served by attaching a chair “valued at one 
dollar.” The story is also related that authorities 
of the College, apprehending an argument that the 
institution had already forfeited its charter on ac- 
count of having ceased to minister to Indians, sent 
across into Canada for some of the aborigines, and 
that three were brought down the river to receive 
matriculation, but becoming panic-stricken as they 
neared the town, leaped into the water, swam ashore, 
and disappeared in the forest. Unfortunately this 
interesting tale has been seriously questioned. 

The attorneys of the College before the Superior 
Court were Jeremiah Mason, one of the best law- 
yers of the day, Jeremiah Smith, a former Chief 


THE SANCTITY OF CONTRACTS 159 


Justice of New Hampshire, and Daniel Webster. ° 
These three able Jawyers argued that the amend- 
ing act exceeded “the rightful ends of legislative 
power,” violated the principle of the separation 
of powers, and deprived the trustees of their 
“privileges and immumities”’ contrary to the “law 
of the land” clause of the State Constitution, and 
impaired the obligation of contracts. The last con- 
tention stirred Woodward’s attorneys, Bartlett and 
Sullivan, to ridicule. “By the same reasoning,” 


said the latter, “every law must be considered 


in the nature of a contract, until the Legislature 


would find themselves in such a labyrinth of con- 
tracts, with the United States Constitution over 
their heads, that not a subject would be left 


| within their jurisdiction”; the argument was an 


expedient of desperation, he said, a “last straw.” 
The principal contention advanced in behalf of 
the Act was that the College was “‘a public cor- 


poration,” whose “various powers, capacities, and 


franchises all . . . were to be exercised for the bene- 
fit of the public,” and were therefore subject 


_ to public control. And the Court, in sustaining 


the Act, rested its decision on the same ground. 


Chief Justice Richardson conceded the doctrine of 


Fletcher vs. Peck, that the obligation of contracts 


160 MARSHALL AND THE CONSTITUTION 


if 


clause “embraced all contracts relating to pri- 
vate property, whether executed or executory, and 
whether between individuals, between States, or 
between States and individuals,” but, he urged, 
‘“‘a distinction is to be taken between particular 
grants by the Legislature of property or privi- 
leges to individuals for their own benefit, and 
grants of power and authority to be exercised for 
public purposes.” Its public character, in short, 
left the College and its holdings at the disposal of 
the Legislature. 

Of the later proceedings, involving the appeal 
to Washington and the argument before Marshall, 
early in March, 1818, tradition has made Web- 
ster the central and compelling figure, and to 
the words which it assigns him in closing his ad- 
dress before the Court has largely been attriLut- 
ed the great legal triumph which presently fol- 
lowed. The story is, at least, so well found that 
the chronicler of Dartmouth College vs. Wood- 
ward who should venture to omit it must be a bold 


man indeed. 


The argument ended [runs the tale], Mr. Webster stood 
for some moments silent before the Court, while every 
eye was fixed intently upon him. At length, addressing 
the Chief Justice, he proceeded thus: “This, sir, is my 


THE SANCTITY OF CONTRACTS 161 


ease. It is the case . . . of every college in our land. 

Sir, you may destroy this little institution. . . 
You may put it out. But if you do so, you must carry 
through your work! You must extinguish, one after 
another, all those greater lights of science, which, for 
more than a century have thrown their radiance over 
our land. Itis, Sir, as I have said, a small college. And 
yet there are those who love it — ”’ 

Here, the feelings which he had thus far succeeded in 
keeping down, broke forth, his lips quivered; his firm 
cheeks trembled with emotion, his eyes filled with 
tears. ... The court-room during these two or three 
minutes presented an extraordinary spectacle. Chief 
Justice Marshall, with his tall and gaunt figure bent 
over, as if to catch the slightest whisper, the deep fur- 
rows of his cheek expanded with emotion, and his eyes 
suffused with tears; Mr. Justice Washington at his side, 
with small and emaciated frame, and countenance more 


_ like marble than I ever saw on any other human being. 


There was not one among the strong-minded men 


_ of that assembly who could think it unmanly to weep, 
_when he saw standing before him the man who had 


made such an argument, melted into the tenderness of 


| a child. 


Mr. Webster had now recovered his composure, and, 
fixing his keen eyes on Chief Justice Marshall, said in 


| that deep tone with which he sometimes thrilled the 
_ heart of an audience: “Sir, I know not how others may 
feel . . . but for myself, when I see my Alma Mater 
_ surrounded, like Czesar in the Senate house, by those 


who are reiterating stab after stab, I would not, for my 


_ right hand, have her turn to me and say, Et tu quoque 


mi fili! And thou, too, my sop!” 


It 


162 MARSHALL AND THE CONSTITUTION 


Whether this extraordinary scene, first described 
thirty-four years afterward by a putative wit- 
ness of it, ever really occurred or not, it is today 
impossible to say.‘ But at least it would be an 
error to attribute to it great importance. From 
the same source we have it that at Exeter, too, 
Webster had made the judges weep — yet they 
had gone out and decided against him. Judges do 
not always decide the way they weep! 

Of the strictly legal part of his argument Web- 
ster himself has left us a synopsis. Fully three- 
quarters of it dealt with the questions which had 
been discussed by Mason before the State Supreme 
Court under the New Hampshire Constitution and 
was largely irrelevant to the great point at issue 
at Washington. Joseph Hopkinson, who was now 
associated with Webster, contributed far more to 
the content of Marshall’s opinion; yet he, too, 
left one important question entirely to the Chief 
Justice’s ingenuity, as will be indicated shortly. 
Fortunately for thé College its opponents were 
ill prepared to take advantage of the vulnerable 
points of its defense. For some unknown reason, 


t Professor Goodrich of Yale, who is responsible for the story, com- | 
municated it to Rufus Choate in 1853. It next appears on Goodrich’s 
authority in Curtis’s Webster, vol. u, pp. 169-71. 


THE SANCTITY OF CONTRACTS 163 


Bartlett and Sullivan, who had carried the day at 
Exeter, had now given place to William Wirt and 
John Holmes. Of these the former had just been 
made Attorney-General of the United States and 
had no time to give to the case — indeed he ad- 
mitted that “he had hardly thought of it till it 


3° 


was called on.”’ As for Holmes, he was a “‘kaleido- 
scopic politician” and barroom wit, best known to 
contemporaries as “‘the noisy eulogist and reputed 
protégé of Jefferson.”’ A remarkable strategy that, 
which stood such a person up before John Marshall 
to plead the right of state Legislatures to dictate 
the fortunes of liberal institutions! 

The arguments were concluded on Thursday, 
the 12th of March. The next morning the Chief 
Justice announced that the Court had conferred, 
that there were different opinions, that some of 
the judges had not arrived at a conclusion, and 
that consequently the cause must be continued. 
Webster, however, who was apt to be much in 
“the know” of such matters, ventured to place 
the different judges thus: “‘ The Chief and Washing- 
ton,’ he wrote his former colleague Smith, “‘I have 
no doubt, are with us. Duvall and Todd perhaps 
against us; the other three holding up — I cannot 
much doubt but that Story will be with us in the 


'64 MARSHALL AND THE CONSTITUTION 


end, and I think we have much more than an even 
chance for one of the others.” 

The friends of the College set promptly to work 
to bring over the wavering judges. To their dis- 
may they learned that Chancellor James Kent 
of New York, whose views were known to have 
great weight with Justices Johnson and Livingston, 
had expressed himself as convinced by Chief Jus- 
tice Richardson’s opinion that Dartmouth College 
was a public corporation. Fortunately, however, 
a little ransacking of the records brought to light 
an opinion which Kent and Livingston had both 
signed as early as 1803, when they were members 
of the New York Council of Revision, and which 
took the ground that a then pending measure in the 
New York Legislature for altering the Charter of 
New York City violated “‘due process of law.”” At 
the same time, Charles Marsh, a friend of both Kent 
and Webster, brought to the attention of the former 
Webster’s argument before Marshall at Washing- 
ton in March, 1818. Then came a series of confer- 
ences at Albany in which Chancellor Kent, Justice 
Johnson, President Brown of Dartmouth College, 
Governor Clinton, and others participated. Asa 
result, the Chancellor owned himself converted to 
the idea that the College was a vrivate institution. 


THE SANCTITY OF CONTRACTS 165 


The new term of court opened on Monday, Feb- 
| ruary 1,1819. William Pinkney, who in vacation 
| had accepted a retainer from the backers of Wood- 
ward, that is, of the State, took his stand on 
| the second day near the Chief Justice, expecting 
to move for a reargument. Marshall, “turning his 
_ blind eye” to the distinguished Marylander, an- 
- nounced that the Court had reached a decision, 
| plucked from his sleeve an eighteen folio manu- 
| script opinion, and began reading it. He held 
that the College was a “ 
stitution”’; that its charter was the outgrowth of 


private eleemosynary in- 


a contract between the original donors and the 
Crown, that the trustees represented the inter- 
est of the donors, and that the terms of the Con- 
stitution were broad enough to cover and protect 
this representative interest. The last was the only 
point on which he confessed a real difficulty. The 
primary purpose of the constitutional clause, he 
owned, was to protect “contracts the parties to 
which have a vested beneficial interest”’ in them, 
whereas the trustees had no such interest at stake. 
But, said he, the case is within the words of the 
rule, and ‘‘must be within its operation likewise, 
unless there be something in the literal con- 
struction” obviously at war with the spirit of the 


166 MARSHALL AND THE CONSTITUTION 


Constitution, which was far from the fact. For, he 


“ec 


continued, “it requires no very critical examina- 
tion of the human mind to enable us to determine 
that one great inducement to these gifts is the 
conviction felt by the giver that the disposition he 
makes of them is immutable. All such gifts are 
made in the pleasing, perhaps delusive hope, that 
the charity wi!l flow forever in the channel which 
the givers have marked out for it. If every man 
finds in his own bosom strong evidence of the uni- 
versality of this sentiment, there can be but little 
reason to imagine that the framers of our Con- 
stitution were strangers to it, and that, feeling the 
necessity and policy of giving permanence and se- 
curity to contracts”’ generally, they yet deemed 
it desirable to leave this sort of contract subject to 
legislative interference. Such is Marshall’s answer 
to Jefferson’s outburst against “‘the dead hand.” 
Characteristically, Marshall nowhere cites Flet- 
cher vs. Peck in his opinion, but he builds on the 
construction there made of the “obligation of con- 
tracts”’ clause as clearly as do his associates, Story 
and Washington, who cite it again and again in 
their concurring opinion. ‘Thus he concedes that 
the British Parliament, in consequence of its un- 
limited power, might at any time before the Revo- 


THE SANCTITY OF CONTRACTS 167 


lution have annulled the charter of the College and 
so have disappointed the hopes of the donors; but, 
he adds, “the perfidy of the transaction would have 
been universally acknowledged.”’ Later on, he fur- 
ther admits that at the time of the Revolution 
the people of New Hampshire succeeded to “the 
transcendent power of Parliament,” as well as to 
that of the King, with the result that a repeal of 
the charter before 1789 could have been contested 
only under the State Constitution. “But the Con- 
stitution of the United States,’’ he continues, “‘has 
imposed this additional limitation, that the Legis- 
lature of a State shall pass no act ‘impairing the 


999 


obligation of contracts.’”’ In short, as in Fletcher — 
vs. Peck, what was originally a moral obligation is 
regarded as having been lifted by the Constitution 
into the full status of a legal one, and this time 
without any assistance from “the general prin- } 
ciples of our free institutions.” 

How is the decision of the Supreme Court in the 
case of Dartmouth College vs. Woodward to be 
assessed today? Logically the basis of it was re- 
pudiated by the Court itself within a decade. albeit 
the rule it lays down remained unaffected. His- 
torically it is equally without basis, for the inten- 


tion of the obligation of contracts clause, as the 


168 MARSHALL AND THE CONSTITUTION 


evidence amply shows, was to protect private 
executory contracts, and especially contracts of 
debt.' In actual practice, on the other hand, the 
decision produced one considerable benefit: in the 
words of a contemporary critic, it put private in- 
stitutions of learning and charity out of the reach 
of “legislative despotism and party violence.” 

But doubtless, the critic will urge, by the same 
sign this decision also put profit-seeking corpora- 
tions beyond wholesome legislative control. But 
is this a fact? To begin with, such a criticism is 
clearly misdirected. As we have just seen, the 
New Hampshire Superior Court itself would have 
felt that Fletcher vs. Peck left it no option but to 
declare the amending act void, had Dartmouth 
College been, say, a gas company; and this was 
in all probability the universal view of bench and. 
barin 1819. Whatever blame there is skould there- 
fore be awarded the earlier decision. But, in the 
second place, there does not appear after all to be 
so great measure of blame to be awarded. The 
opinion in Dartmouth College vs. Woodward leaves 
jt perfectly clear that legislatures may reserve the 
right to alter or repeal at will the charters they grant. 


t Much of the evidence is readily traceable through the Index to 
Max Farrand’s Records of ithe Federal Convention. 


THE SANCTITY OF CONTRACTS 169 


lf therefore alterations and repeals have not been 
as frequent as public policy has demanded, whose 
fault is it? 

Perhaps, however, it will be argued that the real 
mischief of the decision has consisted in its effect 
upon the state Legislatures themselves, the idea 
being that large business interests, when offered 
the opportunity of obtaining irrepealable charters, 
have frequently found it worth their while to assail 
frail legislative virtue with irresistible temptation. 
The answer to this charge is a “‘confession in avoid- 
ance’; the facts alleged are true enough but hardly 
to the point. Yet even if they were, what is to be 
said of that other not uncommon incident of legis- 
lative history, the legislative “strike,” whereby 
corporations not protected by irrepealable charters 
are blandly confronted with the alternative of hav- 
ing their franchises mutilated or of paying hand- 
somely for their immunity? So the issue seems to 
resolve itself into a question of taste regarding 
two species of legislative ““honesty.”” Does one 
prefer that species which. in the words of the late 
Speaker Reed, manifests itself in “staying bought,” 
or that species which flowers in legislative black- 
mail? The truth of the matter is that Marshall’s 
decision has been condemned by ill-informed or 


170 MARSHALL AND THE CONSTITUTION 


ill-intentioned critics for evils which are much 
more simply and much more adequately explained 
by general human cupidity and by the power in- 
herent in capital. These are evils which have been 
experienced quite as fully in other countries which 
never heard of the “obligation of contracts” clause. 

The decisions reached in Fletcher vs. Peck and 
Dartmouth College vs. Woodward are important 
episodes in a significant phase of American consti- 
tutional history. Partly on account of the lack of 
distinction between legislative and judicial power 
and partly on account of the influence of the notion 
of parliamentary sovereignty, legislative bodies at 
the close of the eighteenth century were the sources 
of much anonymous and corporate despotism. 
Evenin England as well as in this country the value, 
and indeed the possibility, of representative insti- 
tutions had been frankly challenged in the name 
of liberty. For the United States the problem of 
making legislative power livable and tolerable — 
a problem made the more acute by the multi- 
plicity of legislative bodies — was partly solved 
by the establishment of judicial review. But this 
was only the first step: legislative power had still 
to be defined and confined. Marshall’s audacity 
in invoking generally recognized moral principles 


THE SANCTITY OF CONTRACTS 171 


against jegislative sovereignty in his interpretation 
of the “obligation of contracts”’ clause pointed the 
way to the American judiciaries for the discharge of 
their task of defining legislative power. The final 
result is to be seen today in the Supreme Court’s 
concept of the police power of a State as a power 
not of arbitrary but of reasonable legislation. 
While Marshall was performing this service in 
behalf of representative government, he was also 
aiding the cause of nationalism by accustoming 
certain types of property to look upon the National 
Government as their natural champion against the 
power of the States. In this connection it should 
also be recalled that Gibbons vs. Ogden and Brown 
_ vs. Maryland had advanced the principle of the 
exclusiveness of Congress’s power over foreign and 
interstate commerce. Under the shelter of this 
interpretation there developed, in the railroad and 
transportation business of the country before the 
Civil War, a property interest almost as exten- 
sive as that which supported the doctrine of State 
Rights. Nor can it be well doubted that Marshall 
designed some such result or that he aimed to 
prompt the reflection voiced by King of Massa- 
chusetts on the floor of the Federal Convention. 
“He was filled with astonishment that, if we 


172 MARSHALL AND THE CONSTITUTION 


were convinced that every man in America was 
secured in all his rights, we should be ready to 
sacrifice this substantial good to the phantom of 
state sovereignty.” 

Lastly, these decisions brought a certain theo- 
retical support to the Union. Marshall himself did 
not regard the Constitution as a compact between 
the States; if a compact at all, it was a compact 
among individuals, a social compact. But a great 
and increasing number of his countrymen took the 
other view. How unsafe, then, it would have been 
from the standpoint of one concerned for the in- 
tegrity of the Union, to distinguish public con- 
tracts from private on the ground that the former, 
in the view of the Constitution, had less obligation! 


1 


CHAPTER Vii 


THE MENACE OF STATE RIGHTS 


MarsHALL’s reading of the Constitution may be 


summarized in a phrase: it transfixed State Sover- 
eignty with a two-edged sword, one edge of which 
was inscribed “National Supremacy,” and the 


_ other “Private Rights.” Yet State Sovereignty, 
ever reanimated by the democratic impulse of the 


times, remained a serpent which was scotched but 
not killed. To be sure, this dangerous enemy to 
national unity had failed to secure for the state 
Legislatures the right to interpret the Constitution 
with authoritative finality; but its argumentative 


_ resources were still far from exhausted, and its po- 


litical resources were steadily increasing. It was 


_ still capable of making a notable resistance even in 


withdrawing itself, until it paused in its recoil and 


flung itself forward in a new attack. 


The connecting link between the Supreme Court 


and the state courts has already been pointed out 
173 


174 MARSHALL AND THE CONSTITUTION 


to be Section xxv of the Act of 1789 organizing the 
Federal Judiciary. This section provides, in effect, 
that when a suit is brought in a state court under a 
state law, and the party against whom it is brought 
claims some right under a national law or treaty 
or under the Constitution itself, the highest state 
court into which the case can come must either 
sustain such a claim or consent to have its decision 
reviewed, and possibly reversed, by the Supreme 
Court. The defenders of State Rights at first ap- 
plauded this arrangement because it left to the 
local courts the privilege of sharing a jurisdiction 
which could have been claimed exclusively by the 
Federal Courts. But when State Rights began to 
grow into State Sovereignty, a different attitude 
developed, and in 1814 the Virginia Court of Ap- 
peals, in the case of Hunter vs. Martin,” pro- 
nounced Section xxv void, though, in order not to 
encourage the disloyal tendencies then rampant in 
New England, the decision was not published until 
after the Treaty of Ghent, in February, 1815. 

The head and front of the Virginia court at this 
time was Spencer Roane, described as “the most 


«See pages 14-15. | 
24 Munford (Va.), 1. See also William E. Dodd’s article on Chief 
Justice Marshall and Virginia in American Historical Revier, vol. 

XII, p. 776. 


THE MENACE OF STATE RIGHTS 175 


powertul politician in the State,” an ardent Jef- 
fersonian, and an enemy of Marshall on his own 
account, for had Ellsworth not resigned so inop- 
portunely, late in 1800, and had Jefferson had the 
appointment of his successor, Roane would have 
been the man. His opinion in Hunter vs. Martin 
disclosed personal animus in every line and was writ- 
ten with a vehemence which was more likely to 
discomfit a grammarian than its designed victims; 
but it was withal a highly ingenious plea. At one 
point Roane enjoyed an advantage which would 
not be his today when so much more gets into 
print, for the testimony of Madison’s Journal, 
which was not published till 1840, is flatly against 
him onthe mainissue. In 1814, however, the most 
nearly contemporaneous evidence as to the inten- 
tion of the framers of the Constitution was that of 
the Federalist, which Roane stigmatizes as “‘a mere 
newspaper publication written in the heat and fury 
af the battle,” largely by “‘a supposed favorer of 


> 


a consolidated government.” This description not 
only overlooks the obvious effort of the authors of 
the Federalist to allay the apprehensions of state 
jealousy but it also conveniently ignores Madison’s 
part in its composition. Indeed, the enfant terrible 


of State Rights, the Madison of 1787-88, Roane 


176 MARSHALL AND THE CONSTITUTION 


would fain conceal behind the Madison of ten years 
later; and the Virginia Resolutions of 1798 and the 
Report of 1799 he regards the earliest “‘just exposi- 
tion of the principles of the Constitution.” 

To the question whether the Constitution gave 
“any power to the Supreme Court of the United 
States to reverse the judgment of the supreme 
court of a State,’’ Roane returned an emphatic 
negative. His argument may be summarized thus: 
The language of Article III of the Constitution 
does not regard the state courts as composing a 
part of the judicial organization of the General 
Government; and the States, being sovereign, can- 
not be stripped of their power merely by impli- 
cation. Conversely, the General Government is a 
government over individuals and is therefore ex- 

ected to exercise its powers solely through its 
own organs. To be sure, the judicial power of the 
United States extends to “all cases arising”’ under 
the Constitution and the laws of the United States. 
But in order to come within this description, a case 
must not merely involve the construction of the 
Constitution or laws of the United States; it must 
have been instituted in the United States courts, 
and not in those of another Government. Fur- 
ther, the Constitution and the acts of Congress “‘in 


THE MENACE OF STATE RIGHTS 177 


pursuance thereof” are “the supreme law of the 
land,” and “the judges in every State”’ are “‘bound 


_ thereby, anything in the Constitution or laws of any 


State to the contrary notwithstanding.” But they 
are bound as state judges and only as such; and 


what the Constitution is, or what acts of Con- 


_ gress are “‘in pursuance ”’ of it, is for them to declare 


without any correction or interference by the courts 


_ of another jurisdiction. Indeed, it is through the 
_ power of its courts to say finally what acts of 


Congress are constitutional and what are not, that 


_ the State is able to exercise its right of arresting 


within its boundaries unconstitutional measures of 
the General Government. For the legislative nul- 


_ lification of such measures proposed by the Vir- 


_ ginia and Kentucky resolutions is thus substituted 
_ judicial nullification by the local judiciaries. 


In Martin vs. Hunter’s Lessee,t which was de- 


| cided in February, 1816, Story, speaking for the 


Court, undertook to answer Roane. Roane’s ma- 
jor premise he met with flat denial: “It is a 
mistake,’ he asserts, “‘that the Constitution was 
not designed to operate upon States in their cor- 
porate capacities. It is crowded with provisions 


I Wheaton, 304. Marshall had an indirect interest in the case. 
See supra, pp. 44-45. 


12 


178 MARSHALL AND THE CONSTITUTION 


which restrain or annul the sovereignty of the 
States in some of the highest branches of their 


prerogatives.”’ The greater part of the opinion, 


however, consisted of a minute examination of the 
language of Article III of the Constitution. In 


brief, he pointed out that while Congress “may — 


. establish” inferior courts and, therefore, may 
not, it was made imperative that the judicial 
power of the United States “shall extend to all 
cases arising . . . under”’ the Constitution and acts 
of Congress. If, therefore, Congress should ex- 
ercise its option and not establish inferior courts, 
in what manner, he asked, could the purpose of 
the Constitution be realized except by providing 
appeals from the state courts to the United States 
Supreme Court? But more than that, the practical] 
consequences of the position taken by the Virginia 
Court of Appeals effectually refuted it. That there 
should be as many versions of the Constitution, 
laws, and treaties as there are States in the Union 
was certainly never intended by the framers, nor 
yet that plaintiffs alone should say when resort 
should be had to the national tribunals, which were 
designed for the benefit of all. 


If Story’s argument is defective at any point, it — 


is in its failure to lay down a clear definition of 


THE MENACE OF STATE RIGHTS 179 


“cases arising under this Constitution,” and this 
defect in constitutional interpretation is supplied 
five years later in Marshall’s opinion in Cohens vs. 


| Virginia.* The facts of this famous case were as 
| follows: Congress had established a lottery for the 
| District of Columbia, fer which the Cohens had 


sold tickets in Virginia. They had thus run foul of 


| a state law prohibiting such transactions and had 
| been convicted of the offense in the Court of Quar- 
| terly Sessions of Norfolk County and fined one hun- 


dred dollars. From this judgment they were now 


| appealing under Section xxv. 


Counsel for the State of Virginia again advanced 
the principles which had been developed by Roane 
in Hunter vs. Martin but urged in addition that 
this particular appeal rendered Virginia a defend- 
ant contrary to Article XI of the Amendments. 
Marshall’s summary of their argument at the out- 


set of his opinion is characteristic: ““They main- 


tain,”’ he said, “that the nation does not possess a 


department capable of restraining peaceably, and 
_ by authority of law, any attempts which may be 


made by a part against the legitimate powers of 
the whole, and that the government is reduced to 
the alternative of submitting to such attempts or of 


16 Wheaton, 264. 


180 MARSHALL AND THE CONSTITUTION 


resisting them by force. They maintain that the 
Constitution of the United States has provided no 
tribunal for the final construction of itself or of the 
laws or treaties of the nation, but that this power 
must be exercised in the last resort by the courts 
of every State in the Union. That the Constitu- 
tion, laws, and treaties may receive as many con- 
structions as there are States; and that this is nota 
mischief, or, if a mischief, is irremediable.” 

The cause of such absurdities, Marshall con- 
tinued, was a conception of State Sovereignty con- 
tradicted by the very words of the Constitution, 
which assert its supremacy, and that of all acts of 
Congress in pursuance of it, over all conflicting 
state laws whatsoever. “This,” he proceeded to 
say, “is the authoritative language of the Ameri- 
can People, and if gentlemen please, of the Ameri. 
can States. It marks, with lines too strong to be 
mistaken, the characteristic distinction between 
the Government of the Union and those of the 
States. The General Government, though limited 
as to its objects, is supreme with respect to those 
objects. This principle is a part of the Constitu- 
tion, and if there be any who deny its necessity, — 
none can deny its authority.” Nor was this to 
say that the Constitution is unalterable. “‘The 


THE MENACE OF STATE RIGHTS 181 


people make the Constitution, and the people can 
unmake it. Itis the creature of their own will, and 
lives only by their will. But this supreme and ir- 
| resistible power to make or unmake resides only 
| in the whole body of the people, not in any sub- 
| division of them. The attempt of any of the parts 
| to exercise it is usurpation, and ought to be re- 
| pelled by those to whom the people have delegated 
| their power of repelling it.” 

Once Marshall had swept aside the irrelevant 
/ notion of State Sovereignty, he proceeded with 
the remainder of his argument without difficulty. 
| Counsel for Virginia had contended that “‘a case 
| arising under the Constitution or a law must be 
- one in which a party comes into court to demand 
something conferred on him by the Constitution 
| or a law’’; but this construction Marshall held to 


) 


_ be “too narrow.” “A case in law or equity con- 
sists of the right of the one party as well as of 
_ the other, and may truly be said to arise under 
the Constitution or a law of the United States 
_ whenever its correct decision depends on the construc- 
tion of either.”” From this it followed that Section 
XXV Was a measure necessary and proper for ex- 
tending the judicial power of the United States 


appellately to such cases whenever they were first 


182 MARSHALL AND THE CONSTITUTION 


brought in a state court. Nor did Article XI of 
the Amendments nullify the power thus conferred ~ 
upon the Court in a case which the State itself had 
instituted, for in such a case the appeal taken to | 
the national tribunal was only another stage in 
an action “begun and prosecuted, ”’ not against the 
State, but by the State. The contention of Vir- 
ginia was based upon the assumption that the 
Federal and the State Judiciaries constituted inde- 
pendent systems for the enforcement of the Con- 
stitution, the national laws, and treaties, and such 
an assumption Marshall held to be erroneous. For 
the purposes of the Constitution the United States 
“form a single nation,” and in effecting these 
purposes the Government of the Union may “le- 
gitimately control all individuals or governments 
within the American territory.” 

“Our opinion in the Bank Case,”’ Marshall had 
written Story from Richmond in 1819, a few weeks 
after M’Culloch vs. Maryland, “has roused the 
sleeping spirit of Virginia, if indeed it ever sleeps.” 
Cohens vs. Virginia, in 1821, produced an even 
more decided reaction. Jefferson, now in retire- 
ment, had long since nursed his antipathy for the 
Federal Judiciary to the point of monomania. It 
was in his eyes “a subtle corps of sappers and 


THE MENACE OF STATE RIGHTS _ 183 


| miners constantly working underground to under- 


> 


| mine our confederated fabric”’’; and this latest as- 
| sault upon the rights of the States seemed to him, 
though perpetrated in the usual way, the most 
outrageous of all: ““An opinion is huddled up in 


conclave, perhaps by a majority of one, delivered 


as if unanimous, and with the silent acquiescence - 


of lazy or timid associates, by a crafty chief judge. 
| who sophisticates the law to his own mind by the 
turn of his own reasoning.” 

Roane, Jefferson’s protégé, was still more vio- 
lent and wrote a series of unrestrained papers at 
this time in the Richmend Enquirer, under the 
pseudonym “Algernon Sidney.” Alluding to these, 
Marshall wrote Story that “their coarseness and 
malignity would designate the author of them if 
he was not avowed.”’ Marshall himself thought to 
answer Roane, but quickly learned that the Vir- 
ginia press was closed to that side of the ques- 
tion. He got his revenge, however, by obtaining 
the exclusion of Roane’s effusions from Hall’s Law 
_ Journal, an influential legal periodical published in 
Philadelphia. But the personal aspect of the con- 
troversy was the least important. “A deep design,” 
Marshall again wrote his colleague, “‘to convert 
_ our Government into a mere league of States has 


184 MARSHALL AND THE CONSTITUTION 


taken hold of a powerful and violent party in Vir- 
ginia. The attack upon the judiciary is in fact an 
attack upon the Union.” Nor was Virginia the 
only State where this movement was formidable, 
and an early effort to repeal Section xxv was to 
be anticipated. 

That the antijudicial movement was extending 
to other States was indeed apparent. The decision 
in Sturges vs. Crowinshield* left for several years 
the impression that the States could not pass bank- 
ruptcy laws even for future contracts and conse- 
quently afforded a widespread grievance. Ohio 
had defied the ruling in M’Culloch vs. Maryland, 
and her Treasurer was languishing in jail by the 
mandate of the Federal Circuit Court. Kentucky 
had a still sharper grievance in the decision in 
Green vs. Biddle,? which invalidated a policy she 
had been pursuing for nearly a quarter of a cen- 
tury with reference to squatters’ holdings; and 
what made the decision seem the more outrageous 
was the mistaken belief that it had represented the 
views of only a minority of the justices. 

The Legislatures of the aggrieved States were 
soon in full hue and cry at the heels of the Court; 
and from them the agitation quickly spread to 

«4 Wheaton, 122. 28 Wheaton, 1. 


THE MENACE OF STATE RIGHTS 185 


_ Congress.* On December 12, 1821, Senator John- 


son of Kentucky proposed an amendment to the 
Constitution which was intended to substitute 
the Senate for the Supreme Court in all constitu- 
tional cases. In his elaborate speech in support of 
his proposition, Johnson criticized at length the 
various decisions of the Court but especially those 


_ grounded on its interpretation of the “obligation of 
- eontracts”’ clause. More than that, however, he 
_ denied in toto the rights of the Federal Courts to 
_ pass upon the constitutionality either of acts of 


Congress or of state legislative measures. So long 


_ as judges were confined to the field of jurispru- 
_ dence, the principles of which were established 


and immutable, judicial independence was all very 


_ well, said Johnson, but “the science of politics was 
_ still in its infancy”’; and in a republican system of 
_ government its development should be entrusted 
to those organs which were responsible to the 
people. Judges were of no better clay than other 
folk. “Why, then, ” he asked, “should they be 
_ considered any more infallible, or their decisions 
any less subject to investigation and revision?”’ 


t For a good review of the contemporary agitation aroused by Mar- 


| shall’s decisions, see two articles by Charles Warren in the American 


Law Review, vol. Xuv11, pp. 1 and 161. 


186 MARSHALL AND THE CONSTITUTION 


Furthermore, ‘courts, like cities, and villages, or 
like legislative bodies, will sometimes have their 
Jeaders; and it may happen that a single individ- 
ual will be the prime cause of a decision to over- 
turn the deliberate act of a whole State or of the 
United States; yet we are admonished to receive 
their opinions as the ancients did the responses of 
the Delphic oracle, or the Jews, with more propri- 
ety, the communications from Heaven delivered by 
Urim and Thummim to the High Priest of God’s 
chosen people.” 

For several years after this, hardly a session 
of Congress convened in which there was not in- 
troduced some measure for the purpose either of 
curbing the Supreme Court or of curtailing Mar- 
shall’s influence on its decisions. One measure, for 
example, proposed the repeal of Section xxv; an- 
other, the enlargement of the Coust from seven 
to ten judges; another, the requirement that any 
decision setting aside a state law must have the 
concurrence of five out of seven judges; another, 
the allowance of appeals to the Court on decisions 
adverse to the constitutionality of state laws as 
well as on decisions sustaining them. Finally, in — 
January, 1826, a bill enlarging the Court to ten 
judges passed the House by a vote of 132 to 27. 


THE MENACE OF STATE RIGHTS 187 


In the Senate, Rowan of Kentucky moved an 
amendment requiring in all cases the concurrence 
of seven of the proposed ten judges. In a speech 
which was typical of current criticism of the Court 
he bitterly assailed the judges for the protection 
they had given the Bank — that “political jug- 
gernaut,”’ that “creature of the perverted corpo- 
rate powers of the Federal Government”? — and 
he described the Court itself as “placed above the 
control of the will of the people, in a state of dis- 
connection with them, inaccessible to the chari- 
ties and sympathies of human life.”” The amend- 
ment failed, however, and in the end the bill itself | 
was rejected. 

Yet a proposition to swamp the Court which 
received the approval of four-fifths of the House of 
Representatives cannot be lightly dismissed as an 
aberration. Was it due to a fortuitous coalescence 
of local grievances, or was there a general under- 
lying cause? That Marshall’s principles of con- 
stitutional law did not entirely accord with the 
political and economic life of the nation at this 
period must be admitted. The Chief Justice was 
at once behind his times and ahead of them. On 
the one hand, he was behind his times because 
he failed to appreciate adequately the fact that 


188 MARSHALL AND THE CONSTITUTION 


freedom was necessary to frontier communities 
in meeting their peculiar problems — a freedom 
which the doctrine of State Rights promised them 
—and so he had roused Kentucky’s wrath by 
the pedantic and, as the Court itself was presently 
forced to admit, unworkable decision in Green vs. 
Biddle. Then on the other hand, the nationalism 
of this period was of that negative kind which was 
better content to worship the Constitution than 
to make a really serviceable application of the 
national powers. After the War of 1812 the great 
and growing task which confronted the rapidly 
expanding nation was that of providing adequate 
transportation, and had the old federalism from 
which Marshall derived his doctrines been at the 
helm, this task would undoubtedly have been taken 
over by the National Government. By Madison’s 
veto of the Cumberland Road Bill, however, in 
1816, this enterprise was handed over to the States; 
and they eagerly seized upon it after the open- 
ing of the Erie Canal in 1825 and the perception 
of the immense success of the venture. Later, to 
be sure, the panic of 1837 transferred the work of 
railroad and canal building to the hands of pri- 
vate capital but, after all, without altering greatly 
the constitutional problem. For with corperations 


THE MENACE OF STATE RIGHTS 189 


_ to be chartered, endowed with the power of emi- 


nent domain, and adequately regulated, local policy 


_ obviously called for widest latitude. 


Reformers are likely to count it a grievance that 


_ the courts do not trip over themselves in an endea- 


_ vor to keep abreast with what is called “progress.” 


But the true function of courts is not to reform, but 
to maintain a definite status quo. The Constitu- 
tion defined a status quo the fundamental prin- 
eiples of which Marshall considered sacred. At the 
same time, even his obstinate loyalty to “the in- 


tentions of the framers” was not impervious to 
facts nor unwilling to come to terms with them, 


and a growing number of his associates were ready 
to go considerably farther. 
While the agitation in Congress against the Court 
was at its height, Marshall handed down his deci- 
sion in Gibbons vs. Ogden, and shortly after, that 
in Osborn vs. United States Bank.* In the latter 
case, which was initiated by the Bank, the plain- 
tiff in error, who was Treasurer of the State of 
Ohio, brought forward Article XI of the Amend- 


ments to the Constitution as a bar to the action, 


but Marshall held that this Amendment did not 


prevent a state officer from being sued for acts 


19 Wheaton, 738. 


1909 MARSHALL AND THE CONSTITUTION 


done in excess of his rightful powers. He alsa 
reiterated and amplified the principles of M’Cul- 
loch vs. Maryland. Three years later he gave his 
opinions in Brown vs. Maryland and Ogden vs. 
Saunders.* In the former Marshall’s opinion was 
dissented from by a single associate, but in the 
latter the Chief Justice found himself for the first 
and only time in his entire ncumbency in the réle 
of dissenter in a constitutional case. The decision 
of the majority, speaking through Justice Wash- 
ington, laid down the principle that the obligation 
of a private executory contract cannot be said to 
be “impaired” in a constitutional sense by the 
adverse effect of legislative acts antedating the 
making of the contract; and thus the dangerous 
ambiguity of Sturges vs. Crowinshield was finally 
resolved in favor of the States. 

In the course of the next few years the Court, 
speaking usually through the Chief Justice, de- 
cided several cases on principles favoring local in- 
terest, sometimes indeed curtailing the operation 
of previously established principles. For exam- 
ple, the Court held that, in the absence of specific 
legislation by Congress to the contrary, a State | 
may erect a dam across navigable waters of the 


112 Wheaton. 213. 


THE MENACE OF STATE RIGHTS 191 


United States for local purposes'; that the mere 
grant of a charter to a corporation does not pre- 
vent the State from taxing such corporation on its 
franchises, notwithstanding that “the power to tax 
involves the power to destroy”’’; that the Federal 
Courts have no right to set a state enactment aside 
on the ground that it had divested vested rights, 
unless it had done so through impairing the obliga- 
tion of contracts?; that the first eight Amendments 
to the Constitution do not limit state power, but 
only Federal power‘; that decisions adverse to state 
laws must have the concurrence of a majority of 
the Court. 5 

Despite all these concessions which he made ‘to 
the rising spirit of the times, Marshall found his 
last years to be among the most trying of his chief 
justiceship. Jackson, who was now President, felt 
himself the chosen organ of “the People’s will” and 
was not disposed to regard as binding anybody’s 
interpretation of the Constitution except his own. 
The West and Southwest, the pocket boroughs of 


t Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245 

2 Providence Bank vs. Billings (1830), 4 Peters, 514. 

3 Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson vs. 
Mercer (1834), 8 Peters, 110. 

4 Barron vs. Baltimore (1833), 7 Peters, 243. 

5 See in this connection the Chief Justice’s remarks in Briscoe vs. 
Bank of Kentucky, 8 Peters, 118. 


192 MARSHALL AND THE CONSTITUTION 


the new Administration, were now deep in land 
speculation and clamorous for financial expedients 
which the Constitution banned. John Taylor of 
Caroline had just finished his task of defining 
the principles of constitutional construction which 
were requisite to convert the Union into a league 
of States and had laid his work at the feet of 
Calhoun. ‘Taylor was a candid man and frankly 
owned the historical difficulties in the way of carry- 
ing out his purpose; but Calhoun’s less scrupulous 
dialectic swept aside every obstacle that stood in 
the way of attributing to the States the completest 
sovereignty. 

In Craig vs. Missouri (1830) the Court was con- 
fronted with a case in which a State had sought to 
evade the prohibition of the Constitution against 
the emission of bills of credit by establishing loan 
offices with authority to issue loan certificates in- 
tended to circulate generally in dimensions of fifty 
cents to ten dollars and to be receivable for taxes. 
A plainer violation of the Constitution would 
be difficult to imagine. Yet Marshall’s decision 
setting aside the act was followed by a renewed 
effort to procure the repeal of Section xxv of 
the Judiciary Act. The discussion of the proposal — 


14 Peters, 410. 


THE MENACE OF STATE RIGHTS 193 


threw into interesting contrast two points of view. 
The opponents of this section insisted upon re- 
garding constitutional cases as controversies be- 
tween the United States and the States in their 
corporate capacities; its advocates, on the other 
hand, treated the section as an indispensable safe- ~* 
guard of private rights. In the end, the latter 
point of view prevailed: the bill to repeal, which 
had come up in the House, was rejected by a vote 
of 138 to 51, and of the latter number all but six 
came from Southern States, and more than half 
of them from natives of Virginia. 

Meantime the Supreme Court had become in- 
volved in controversy with Georgia on account of a 
series of acts which that State had passed extend- 
ing its jurisdiction over the Cherokee Indians in 
violation of the national treaties with this tribe. 
Tn Corn Tassel’s case, the appellant from the Geor- 
gia court to the United States Supreme Court was 
hanged in defiance of a writ of error from the 
Court. In Cherokee Nation vs. Georgia, the Court 
itself held that it had no jurisdiction. Finally, in 
1832, in Worcester vs. Georgia, * the Court was con- 
fronted squarely with the question of the validity of 
the Georgia acts. The State put in no appearance, 


™6 Peters, 515. 
13 


194 MARSHALL AND THE CONSTITUTION 


the acts were pronounced void, and the decision 
went unenforced. When Jackson was asked what 
effort the Executive Department would make to 
back up the Court’s mandate, he is reported to 
have said: “John Marshall has made his decision; 
now let him enforce it.” 

Marshall began to see the Constitution and the 
Union crumbling before him. “TI yield slowly and 
reluctantly to the conviction,” he wrote Story, late 
in 1832, “‘that our Constitution cannot last. . . . 
Our opinions [in the South] are incompatible with 
a united government even among ourselves. The 
Union has been prolonged this far by miracles.” 
A personal consideration sharpened his apprehen- 
sion. He saw old age at hand and was determined 
“not to hazard the disgrace of continuing in office 
a mere inefficient pageant,”’ but at the same time 
he desired some guarantee of the character of the 
/ person who was to succeed him. At first he thought 
of remaining until after the election of 1832; but 
Jackson’s reélection made him relinquish altogether 
the idea of resignation. 

A fewmonths later, in consequence of the Adminis- 
tration’s vigorous measures against nullification in 
South Carolina, things were temporarily weaving a 
brighteraspect. Yetthatthefundamentalelements 


THE MENACE OF STATE RIGHTS 195 


of the situation had been thereby altered, Mar- 
shall did not believe. ““To men who think as you 
and I do,”’ he wrote Story, toward the end of 
1834, “the present is gloomy enough; and the fu- 
ture presents no cheering prospect. In the South 
. . . those who support the Executive do not sup- 
port the Government. They sustain the personal 
power of the President, but labor incessantly to 
impair the legitimate powers of the Government. 
Those who oppose the rash and violent measures 
of the Executive . . . are generally the bitter ene- 
mies of Constitutional Government. Many of 
them are the avowed advocates of a league; and 
those who do not go the whole length, go a great 
part of the way. What can we hope for in such 
circumstances? ”’ 

Yet there was one respect in which the signifi- 
cance of Marshall’s achievement must have been 
as clear to himself as it was to his contemporaries. 

[He had failed for the time being to establish his 
definition of national power, it is true, but he had 
made the Supreme Court one of the great politi- 
cal forces of the country.) The very ferocity with 
which the pretensions of the Court were assailed 
in certain quarters was indirect proof of its power, 
but there was also direct testimony of a high order. 


Se 


196 MARSHALL AND THE CONSTITUTION 


In 1830 Alexis de Tocqueville, the French states- 
man, visited the United States just as the rough 
frontier democracy was coming into its own. Only 
through the Supreme Court, in his opinion, were 
the forces of renewal and growth thus liberated to 
be kept within the bounds set by existing institu- 
tions. “The peace, the prosperity, and the very 
existence of the Union,’’ he wrote, “‘are vested in 
the hands of the seven Federal judges. Without 
them the Constitution would be a dead ietter: the 
Executive appeals to them for assistance against 
the encroachments of the legislative power; the 
Legislature demands their protection against the 
assaults of the Executive; they defend the Union 
from the disobedience of the States, the States from 
the exaggerated claims of the Union, the public 
interest against private interests and the consery- 
ative spirit of stability against the fickleness of 


>’ 


the democracy.”’ The contrast between these ob- 
servations and the disheartened words in which Jay 
declined renomination to the chief justiceship in 
1801 gives perhaps a fair measure of Marshall’s 
accomplishment. 

Of the implications of the accomplishment of the 
great Chief Justice for the political life of the coun- 


try, let De Tocqueville speak again: ““Searcely any 


- 


THE MENACE OF STATE RIGHTS 197 


political question arises in the United States which 
is not resolved sooner, or later, into a judicial 
question. Hence all parties are obliged to borrow 
in their daily controversies the ideas, and even 
the language peculiar to judicial proceedings. . . . 
The language of the law thus becomes, in some 
measure, a vulgar tongue; the spirit of law, which 
is produced in the schools and courts of justice, 
gradually penetrates beyond their walls into the 
bosom of society, where it descends to the lowest 
classes, so that at last the whole people contract 
the habits and the tastes of the judicial magistrate.” 

In one respect, however, De Tocqueville erred. 
American “legalism,’’ that curious infusion of poli- 
tics with jurisprudence, that mutual consultation 
of public opinion and established principles, which 
in the past has so characterized the course of discus- 
sion and legislation in America, is traceable to origins 
long antedating Marshall’s chief justiceship. On 
the other hand, there is no public career in Amer- 
ican history which ever built so largely upon this 
pervasive trait of the national outlook as did Mar- 
shall’s, or which has contributed so much to render 
it effective in palpable institutions. 


CHAPTER VIII 
AMONG FRIENDS AND NEIGHBORS 


It is a circumstance of no little importance that 
the founder of American Constitutional Law was 
in tastes and habit of life a simple countryman. 
To the establishment of National Supremacy and 
the Sanctity of Contracts Marshall brought the 
support not only of his office and his command of 
the art of judicial reasoning but also the whole- 
souled democracy and unpretentiousness of the 
fields. And it must be borne in mind that Mar- 
shall was on view before his contemporaries as a 
private citizen rather more of the time, perhaps, 
than as Chief Justice. His official career was, in 
truth, a somewhat leisurely one. Until 1827 the 
term at Washington rarely lasted over six weeks 
and subsequently not over ten weeks. In the 
course of his thirty-four years on the Bench, the 
Court handed down opinions in over 1100 cases, 


which is probably about four times the number of 
198 


AMONG FRIENDS AND NEIGHBORS 199 


opinions now handed down at a single term; and of 
this number Marshall spoke for the Court in about 
half the cases. Toward the middle of March, he 
left Washington for Richmond, and on the 22d of 
May opened court in his own circuit. Then, three 
weeks later, if the docket permitted, he went on to 
Raleigh to hold court there for a few days. The 
summers he usually spent on the estate which he 
inherited from his father at Fauquier, or else he 
went higher up into the mountains to escape ma- 
laria. But by the 22d of November at the latest he 
was back once more in Richmond for court, and at 
the end of December for a second brief term he 
again drove to Raleigh in his high-wheeled gig. 
With his return to Washington early in February 
he completed the round of his judicial year. 

The entire lack of pageantry and circumstance 
which attended these journeyings of his is nowhere 
more gaily revealed than in the following letter to 
his wife, which is now published for the first time 
through the kindness of Mr. Beveridge: 


Raw etcH, Jan.y 24, 1803. 
My pearest Potty 
You will laugh at my vexation when you hear the vari- 
ous calamities that have befallen me. In the first place 
when I came to review my funds, I had the mortification 


200 MARSHALL AND THE CONSTITUTION 


to discover that I had lost 15 silver dollars. out of my 
waist coat pocket. They had worn through the various 
mendings the pocket had sustained and sought their 
liberty in the sands of Carolina. 

I determined not to vex myself with what could not 
be remedied & ordered Peter to take out my cloaths 
that I might dress for court when to my astonishment 
& grief after fumbling several minutes in the portman- 
teau, starting [sic] at vacancy, & sweating most pro- 
fusely he turned to me with the doleful tidings that I 
had no pair of breeches. You may be sure this piece of 
intelligence was not very graciously received; however, 
after a little scolding, I determined to make the best of 
my situation & immediately set out to get a pair made. 

I thought I should bea sans-culotte only one day & that 
for the residue of the term I might be well enough dressed 
for the appearance on the first day to be forgotten. 

But, the greatest of evils, I found, was followed by 
still greater. Not a taylor in town could be prevailed on 
to work for me. They were all so busy that it was im- 
possible to attend to my wants however pressing they 
might be, & I have the extreme mortification to pass 
the whole time without that important article of dress I 
have mentioned. I have no alleviation for this mis- 
fortune but the hope that I shall be enabled in four er 
five days to commence my journey homeward & that I 
shall have the pleasure of seeing you & our dear children 
in eight or nine days after this reaches you. 

Tu the meantime, I[ flatter myself that you are well 
and happy. 

Adieu my dearest Polly 
I am your own affectionate, 
J. MarsHALL. 


AMONG FRIENDS AND NEIGHBORS 201 


Marshall erected his Richmond home, called 
“Shockoe Hill,” in 1793 on a plot of ground which 
he had purchased four years earlier. Here, as his 
eulogist has said, was “the scene of his real tri- 
umphs.” At an early date his wife became a 
nervous invalid, and his devotion to her brought 
out all the finest qualities of his sound and tender 
nature. “It is,”’ says Mr. Beveridge, “the most 
marked characteristic of his entire private life and 
is the one thing which differentiates him sharply 
from the most eminent men of that heroic but 
socially free-and-easy period.” From his associa- 
tion with his wife Marshall derived, moreover, an 
opinion of the sex “‘as the friends, the companions, 
and the equals of man”’ which may be said to have 
furnished one of his few points of sympathetic con- 
tact with American political radicalism in his later 
years. The satirist of woman, says Story, “found 
no sympathy in his bosom,” and “he was still 
farther above the commonplace flatteries by which 
frivolity seeks to administer aliment to personal 
vanity, or vice to make its approaches for baser 
purposes. He spoke to the sex when present, as he 
spoke of them when absent, in language of just 
appeal to their understandings, their tastes. and 
their duties.” 


202 MARSHALL AND THE CONSTITUTION 


Marshall’s relations with his neighbors were the 
happiest possible. Every week, when his judicial 
duties permitted or the more “laborious relaxa- 
tion” of directing his farm did not call him away, 
he attended the meetings of the Barbecue Club ina 
fine grove just outside the city, to indulge in his 
favorite diversion of quoits. The Club consisted of 
thirty of the most prominent men of Richmond, 
judges, lawyers, doctors, clergymen, and merchants. 
To quoits was added the inducement of an excellent 
repast of which roast pig was the piece de résistance. 
Then followed a dessert of fruit and melons, while 
throughout a generous stock of porter, toddy, and of 
punch “from which water was carefully excluded,” 
was always available to relieve thirst. Anentertain- 
ing account of a meeting of the Club at which Mar- 
shall and his friend Wickham were the caterers has 
been thus preserved for us: 


At the table Marshall announced that at the last meet- 
ing two members had introduced politics, a forbidden 
subject, and had been fined a basket of champagne, and 
that this was now produced, as a warning to evil-doers; 
as the club seldom drank this article, they had no cham- 
pagne glasses, and must drink it in tumblers. Those 
who played quoits retired after a while for a game. — 
Most of the members had smooth, highly polished brass 
quoits. But Marshall’s were large, rough, heavy, and 


AMONG FRIENDS AND NEIGHBORS 203 


of iron, such as few of the members could throw well 
from hub to hub. Marshall himself threw them with 
great success and accuracy, and often “rang the meg.” 
On this occasion Marshall and the Rev. Mr. Blair led 
the two parties of players. Marshall played first, and 
rang the meg. Parson Blair did the same, and his 
quoit came down plumply on top of Marshall’s. There 
was uproarious applause, which drew out all the others 
from the dinner; and then came an animated contro- 
versy as to what should be the effect of this exploit. 
They all returned to the table, had another bottle of 
champagne, and listened to arguments, one from Mar- 
shall, pro se, and one from Wickham for Parson Blair. 
[Marshall’s} argument is a humorous companion piece 
to any one of his elaborate judicial opinions. He began 
by formulating the question, ‘Who is winner when the 
adversary quoits are on the meg at the same time?” He 
then stated the facts, and remarked that the question 
was one of the true construction and applications of the 
rules of the game. The first one ringing the meg has 
the advantage. No other can succeed who does not 
begin by displacing this first one. The parson, he will- 
ingly allowed, deserves to rise higher and higher in 
everybody’s esteem; but then he mustn’t do it by get- 
ting on another’s back in this fashion. That is more 
like leapfrog than quoits. Then, again, the legal maxim, 
Cujus est solum, ejus est usque ad celum — his own right 
as first occupant extends to the vault of heaven; no 
opponent can gain any advantage by squatting on his 
back. He must either bring a writ of ejectment, or 
drive him out v7 et armis. And then, after further argu- 
ment of the same sort, he asked judgment, and sat down 
amidst great applause. 


204 MARSHALL AND THE CONSTITUTION 


Mr. Wickham then rose, and made an argument of 
a similar pattern. No rule, he said, requires an im- 
possibility. Mr. Marshall’s quoit is twice as large 
as any other; and yet it flies from his arm like the 
iron ball at the Grecian games from the arm of Ajax. 
It is impossible for an ordinary quoit to move it. 
With much more of the same sort, he contended that 
it was a drawn game. After very animated voting, 
designed to keep up the uncertainty as long as pos- 
sible, it was so decided. Another trial was had, and 
Marshall clearly won.* 


Years later Chester Harding, who once painted 
Marshall, visited the Club. “I watched,” says 
he, “for the coming of the old chief. He soon ap- 
proached, with his coat on his arm and his hat in 
his hand, which he was using as a fan. He walked » 
directly up to a large bowl of mint julep which had 
been prepared, and drank off a tumblerful, smack- 
ing his lips, and then turned to the company with 
a cheerful ‘How are you, gentlemen?’ He was 
looked upon as the best pitcher of the party and 
could throw heavier quoits than any other member 
of the club. The game began with great anima- 
tion. There were several ties; and before long I 
saw the great Chief Justice of the United States 

t J. B. Thayer, John Marshall (Riverside Biographical Series, 1904), 


pp. 134-36, paraphrasing G. W. Munford, The Two Parsons (Rich- 
mond, 1884), pp. 326-38. 


AMONG FRIENDS AND NEIGHBORS 205 


down on his knees measuring the contested dis- 
| tance with a straw, with as much earnestness as if 
it had been a point of law; and if he proved to be 
in the right, the woods would ring with his trium- 
phant shout.”* What Wellesley remarked of the 
younger Pitt may be repeated of Marshall, that 
“unconscious of his superiority,” he “plunged 
_ heedlessly into the mirth of the hour” and was en- 
_ dowed with “a gay heart and social spirit beyond 
any man of his time.” 

As a hero of anecdotes Marshall almost rivals 
Lincoln. Many of the tales preserved are doubt- 
less apocryphal, but this qualification hardly less- 
ens their value as contemporary impressions of 
his character and habits. They show for what sort 
of anecdotes his familiarly known personality had 
an affinity. 

The Chief Justice’s entire freedom from osten- 
tation and the gentleness with which he could re- 
buke it in others is illustrated in a story often told. 
Going early to the market one morning he came 
upon a youth who was fuming and swearing be- 
cause he could get no one to carry his turkey home 
for him. Marshall proffered his services. Arriving 
at the house the voung man asked, “‘ What shall I 

t Thayer, op. cit., pp. 132-33. 


206 MARSHALL AND THE CONSTITUTION 


pay you?” “Oh, nothing,” was the reply; “it was 
on my way, and no trouble.” As Marshall walked 
away, the young man inquired of a bystander, “ Who 
is that polite old man that brought home my tur- 


: 


key forme?” “That,” was the answer, “is Judge 


Marshall, Chief Justice of the United States.” 
Of the same general character is an anecdote 


which has to do with a much earlier period when 


Marshall was still a practicing attorney. An old 
farmer who was involved in a lawsuit came to 


Richmond to attend its trial. ‘“‘ Who is the best — 


lawyer in Richmond?”’ he asked of his host, the 
innkeeper of the Eagle tavern. The latter pointed 


to a tall, ungainly, bareheaded man who had just © 


passed, eating cherries from his hat and exchang- 
ing jests with other loiterers like himself. *‘‘ That 
is he,”’ said the innkeeper; “‘ John Marshall is his 
name.” But the old countryman, who had a hun- 
dred dollars in his pocket, proposed to spend it on 
something more showy and employed a solemn, 
black-coated, and much powdered bigwig. The 
latter turned out in due course to be a splendid il- 
lustration of the proverb that “fine feathers do not 
make fine birds.”’ This the crestfallen rustic soon 
discovered. Meantime he had listened with amaze- 
ment and growing admiration to an argument by 


AMONG FRIENDS AND NEIGHBORS 207 


Marshall in a cause which came on before his own. 
He now went up to Marshall and, explaining his 
difficulty, offered him the five dollars which the ex- 
actions of the first attorney still left him, and be- 
sought his aid. With a humorous remark about 
the power of a black coat and powdered wig 
Marshall good-naturedly accepted the retainer. 
The religious bent of the Chief Justice’s mind is 
illustrated in another story, which tells of his arriv- 
ing toward the close of day at an inn in one of the 
counties of Virginia, and falling in with some young 
men who presently began ardently to debate the 
question of the truth or falsity of the Christian 
‘religion. From six until eleven o’clock the young 
theologians argued keenly and ably on both sides 
of the question. Finally one of the bolder spirits 
exclaimed that it was impossible to overcome preju- 
dices of long standing and, turning to the silent 
visitor, asked: “Well, my old gentleman, what do 
you think of these things?” To their amazement 
the “old gentleman” replied for an hour in an 
eloquent and convincing defense of the Christian 
religion, in which he answered in order every objec- 
tion the young men had uttered. So impressive 
was the simplicity and loftiness of his discourse 
that the erstwhile critics were completely silenced. 


208 MARSHALL AND THE CONSTITUTION 


In truth, Marshall’s was a reverent mind, and it 
sprang instinctively to the defense of ideas and 
institutions whose value had been tested. Unfor- 
tunately, in his Life of Washington Marshall seems 
to have given this propensity a somewhat undue 
scope. There were external difficulties in dealing 
with such a subject apart from those inherent in a 
great biography, and Marshall’s volumes proved 
to be a general disappointment. Still hard pressed 
for funds wherewith to meet his Fairfax invest- 
ment, he undertook this work shortly after he 
became Chief Justice, at the urgent solicitation of 
Judge Bushrod Washington, the literary executor 
of his famous uncle Marshall had hoped to make 
this incursion into the field of letters a very remu- 
nerative one, for he and Washington had counted 
on some thirty thousand subscribers for the work. 
The publishers however, succeeded in obtaining 
only about a quarter of that number, owing part- 
ly at least to the fact that Jefferson had no sooner 
Jearned of the enterprise than his jealous mind con- 
ceived the idea that the biography must be intend- 
ed for partisan purposes. He accordingly gave the 
alarm to the Republican press and forbade the Fed- 
eral postmasters to take orders for the book. At 
the same time he asked his friend Joel Barlow, then 


AMONG FRIENDS AND NEIGHBORS 208 


residing in Paris, to prepare a counterblast, for 
which he declared himself to be “rich in materials.” 
The author of the Columbiad, however, declined this 
hazardous commission, possibly because he was un- 
willing to stand sponsor for the malicious recitals 
that afterwards saw light in the pages of the Anas. 

But apart from this external opposition to the 
biography, Marshall found a source of even keener 
disappointment in the literary defects due to the 
haste with which he had done his work. The first 
three volumes had appeared in 1804, the fourth in 
1805, and the fifth, which is much the best, in 1807. 
Republican critics dwelt with no light hand upon 
the deficiencies of these volumes, and Marshall him- 
self sadly owned that the “inelegancies”’ in the 
first were astonishingly numerous. But the short- 
comings of the work as a satisfactory biography 
are more notable than its lapses in diction. By a 
design apparently meant to rival the improvisa- 
tions of Tristram Shandy, the birth of the hero is 
postponed for an entire volume, in which the author 
traces the settlement of the country. At the open- 
ing of the second volume “‘the birth of young Mr. 
Washington” is gravely announced, to be followed 
by an account of the Father of his Country so de- 
void of intimate touches that it might easily have 


4 


210 MARSHALL AND THE CONSTITUTION 


been written by one who had never seen George 
Washington. 

Nevertheless, these pages of Marshall’s do not 
lack acute historical judgments. He points out, for 
instance, that, if the Revolution had ended before 
the Articles of Confederation were adopted, perma- 
nent disunion might have ensued and that, faulty 
as it was, the Confederation “preserved the idea of 
Union until the good sense of the Nation adopted 
a more efficient system.” Again, in his account 
of the events leading up to the Convention of 
1787, Marshall rightly emphasizes facts which sub- 
sequent writers have generally passed by with 
hardly any mention, so that students may read 
this work with profit even today. But the chief 
importance of these volumes lay, after all, in the 
additional power which the author himself derived 
from the labor of their preparation. In so exten- 
sive an undertaking Marshall received valuable 
training for his later task of laying the foundations 
of Constitutional Law in America. One of his chief 
assets on the bench, as we have already seen, was 
his complete confidence in his own knowledge of the 
intentions of the Constitution — a confidence which 
was grounded in the consciousness that he had 
written the history of the Constitution’s framing. 


AMONG FRIENDS AND NEIGHBORS 211 


Most of Marshall’s correspondence, which is not 
voluminous, deals with politics or legal matters. 
But there are letters in which the personal side of the 
| Chief Justice is revealed. He gives his friend Story 
a touching account of the loss of two of his children. 
He praises old friends and laments his inability 
to make new ones. He commends Jane Austen, 
whose novels he has just finished reading. “Her 
flights,”’ he remarks, “‘are not lofty, she does not 
soar on eagle’s wings, but she is pleasing, interest- 
ing, equable, and yet amusing.” He laments that 
he “‘can no longer debate and yet cannot apply 
his mind to anything else.”’ One recalls Darwin’s 
similar lament that his scientific work had de- 
prived him of all liking for poetry. 

The following letter, which Marshall wrote the 
year before his death to his grandson, a lad of four- 
teen or fifteen, is interesting for its views on a vari- 
ety of subjects and is especially pleasing for its 
characteristic freedom from condescension: 
had yesterday the pleasure of receiving your letter of 
the 29th of November, and am quite pleased with the 
course of study you are pursuing. Proficiency in Greek 
and Latin is indispensable to an accomplished scholar, 
and may be of great real advantage in our progress 


through human life. Cicero deserves to be studied still 
more for histalents than forthe improvement in language 


212 MARSHALL AND THE CONSTITUTION 


to be derived from reading him. He was unquestion- 
ably, with the single exception of Demosthenes, the 
greatest orator among the ancients. He was too a — 
profound Philosopher. His “de officiis” is among 
the most valuable treatises I have ever seen in the 
Latin language. 

History is among the most essential departments of — 
knowledge; and, to an American, the histories of Eng- — 
land and of the United States are most instructive. 
Every man ought to be intimately acquainted with the 
history of his own country. Those of England and of 
the United States are so closely connected that the 
former seems to be introductory to the latter. They 
form one whole. Hume, as far as he goes, to the revolu- 
tion of 1688, is generally thought the best Historian of 
England. Others have continued his narrative to a late 
period, and it will be necessary to read them also. 

There is no exercise of the mind from which more 
valuable improvement is to be drawn than from com- 
position. In every situation of life the result of early 
practice will be valuable. Both in speaking and writing, 
the early habit of arranging our thoughts with regu- 
larity, so as to point them to the object to be proved, 
will be of great advantage. In both, clearness and 
precision are most essential qualities. The man who 
by seeking embellishment hazards confusion, is greatly 
mistaken in what constitutes good writing. The mean- 
ing ought never to be mistaken. Indeed the readers 
should never be obliged to search for it. The writer 
should always express himself so clearly as to make it 
impossible to misunderstand him. He should be com- 
prehended without an effort. 

The first step towards writing and speaking clearly is 


AMONG FRIENDS AND NEIGHBORS 213 


to think clearly. Let the subject be perfectly under- 
| stood, and a man will soon find words to convey his 
| meaning to others. Blair, whose lectures are greatly and 
| justly admired, advises a practice well worthy of being 
| observed. It is to take a page of some approved writer 
and read it over repeatedly until the matter, not the 
_ words, be fully impressed on the mind. Then write, in 
your own language, the same matter. A comparison of 
the one with the other will enable you to remark and 
correct your own defects. This course may be pursued 
after having made some progress in composition. In 
the commencement, the student ought carefully to repe- 
ruse what he has written, correct, in the first instance, 
every error of orthography and grammar. A mistake 
in either is unpardonable. Afterwards revise and im- 
prove the language. 

I am pleased with both your pieces of composition. 
The subjects are well chosen and of the deepest interest. 
Happiness is pursued by all, though too many mistake 
the road by which the greatest good is to be success- 
fully followed. Its abode is not always in the palace or 
the cottage. Its residence is the human heart, and its 
inseparable companion is a quiet conscience. Of this, 
Religion is the surest and safest foundation. The in- 
dividual who turns his theughts frequently to an om- 
nipotent omniscient and all perfect being, who feels his 
dependence on, and his infinite obligations to that be- 
ing will avoid that course of life which must harrow up 
the conscience. 


Marshall was usually most scrupulous to steer 
clear of partisan politics both in his letters and in 


214 MARSHALL AND THE CONSTITUTION 


his conversation, so that on one occasion he was 
much aroused by a newspaper article which had 


x3 


represented him “‘as using language which could 
be uttered only by an angry party man.” But 
on political issues of a broader nature he expressed 
himself freely in the strict privacy of correspond- 
ence at least, and sometimes identified himself with 
public movements, especially in his home State. 
For instance, he favored the gradual abolition of 
slavery by private emancipation rather than by gov- 
ernmental action. In 1823 he became first presi- 
dent of the Richmond branch of the Colonization 
Society; five years later he presided over a conven- 
tion to promote internal improvements in Virginia; 
and in 1829 he took a prominent part in the delib- 
erations of the State Constitutional Convention. 

In the broader matters of national concern his 
political creed was in thorough agreement with 
his constitutional doctrine. Nullification he de- 


€ 


nounced as “wicked folly,’? and he warmly ap- 
plauded Jackson’s proclamation of warning to 
South Carolina. But Marshall regarded with dis- 
may Jackson’s aggrandizement of the executive 
branch, and the one adverse criticism he has left 
of the Constitution is of the method provided for 


the election of the President. In this connection 


AMONG FRIENDS AND NEIGHBORS 215 


he wrote in 1830: ““My own private mind has been 
slowly and reluctantly advancing to the belief that 
the present mode of choosing the Chief Magistrate 


| threatens the most serious danger to the public 


happiness. The passions of men are influenced to 


_ so fearful an extent, large masses are so embittered 


against each other, that I dread the consequences. 

Age is, perhaps, unreasonably timid. Cer- 
tain it is that I now dread consequences that I 
once thought imaginary. I feel disposed to take 


_ refuge under some less turbulent and less danger- 


~ ous mode of choosing the Chief Magistrate.”’ Then 


follows the suggestion that the people of the United 
States elect a body of persons equal in number to 
one-third of the Senate and that the President be 
chosen from among this body by lot. Marshall’s 
suggestion seems absurd enough today, but it 
should be remembered that his fears of national dis- 
order as a result of strong party feeling at the time 
of presidential elections were thoroughly realized in 
1860 when Lincoln’s election led to secession and 
civil war, and that sixteen years later, in the Hayes- 
Tilden contest, a second dangerous crisis was 
narrowly averted. 

In the campaign of 1832 Marshall espoused pri- 
vately the cause of Clay and the United States 


216 MARSHALL AND THE CONSTITUTION 


Bank, and could not see why Virginia should not — 
be of the same opinion. Writing to Story in the — 
midst of the campaign he said: “‘ We are up to the 
chin in politics. Virginia was always insane enough 
to be opposed to the Bank of the United States, 
and therefore hurrahs for the veto. But we are a 
little doubtful how it may work in Pennsylvania. 
It is not difficult to account for the part New York 
may take. She has sagacity enough to see her 
interests in putting down the present Bank. Her 
mercantile position gives her a control, a com- 
manding control, over the currency and the ex- 
changes of the country, if there be no Bank of the 
United States. Going for herself she may approve 
this policy; but Virginia ought not to drudge for 
her.”’ To the end of his days Marshall seems to 
have refused to recognize that the South had a 
sectional interest to protect, or at least that Vir- 
ginia’s interests were sectional; her attachment to 
State Rights he assigned to the baneful influence 
of Jeffersonianism. 

The year 1831 dealt Marshall two severe blows. 
In that year his robust constitution manifested the 
first signs of impairment, and he was forced to un- 
dergo an operation for stone. In the days before 
anesthetics, such an operation, especially in the 


AMONG FRIENDS AND NEIGHBORS 217 


case of a person of his advanced years, was at- 
tended with great peril. He faced the ordeal with 
the utmost composure. His physician tells of vis- 
iting Marshall the morning he was to submit to the 
knife and of finding him at breakfast: 


He received me with a pleasant smile . . . and said, 
“Well, Doctor, you find me taking breakfast, and I 
assure you I have had a good one. [ thought it very 
probable that this might be my last chance, and there- 
fore I was determined to enjoy it and eat heartily.” . . 

He said that he had not the slightest desire to live, 
laboring under the sufferings to which he was subjected, 
and that he was perfectly ready to take all the chances 
of an operation, and he knew there were many against 
him. ... After he had finished his breakfast, I ad- 
ministered him some medicine; he then inquired at 
what hour the operation would be performed. I men- 
tioned the hour of eleven. He said “‘ Very well; do you 
wish me for any other purpose, or may I lie down and 
go to sleep?” I was a good deal surprised at this ques- 
tion, but told him that if he could sleep it would be very 
desirable. He immediately placed himself upon the bed 
and fell into a profound sleep, and continued so until I 
was obliged to rouse him in order to undergo the opera- 
tion. He exhibited the same fortitude, scarcely uttering 
a murmur throughout the whole procedure which, from 
the nature of his complaint, was necessarily tedious. 


The death of his wife on Christmas Day of 
the same year was a heavy blow. Despite her 


218 MARSHALL AND THE CONSTITUTION 


invalidism, she was a woman of much force of char- 
acter and many graces of mind, to which Marshall 
rendered touching tribute in a quaint eulogy com- 


posed for one of his sons on the first anniversary of 
her death: 


Her judgment was so sound and so safe that I have 
often relied upon it in situations of some perplexity. . .. 
Though serious as well as gentle in her deportment, she 
possessed a good deal of chaste, delicate, and playful 
wit, and if she permitted herself to indulge this talent, 
told her little story with grace, and could mimic very 
successfully the peculiarities of the person who was its 
subject. She had a fine taste for belle-lettre reading. 

This quality, by improving her talents for con- 
versation, contributed not inconsiderably to make her 
a most desirable and agreeable companion. It beguiled 
many of those winter evenings during which her pro- 
tracted ill health and her feeble nervous system confined 
us entirely to each other. I shall never cease to look 
back on them with deep interest and regret. . . . She 
felt deeply the distress of others, and indulged the feel- 
ing liberally on objects she believed to be meritorious. 
. . . She was a firm believer in the faith inculcated by 
the Church in which she was bred, but her soft and 
gentle temper was incapable of adopting the gloomy and 
austere dogmas which some of its professors have sought 
to engraft on it. 


Marshall believed women were the intellectual 
equals of men, because he was convinced that they 


AMONG FRIENDS AND NEIGHBORS 219 


possessed in a high degree “those qualities which 
make up the sum of human happiness and trans- 
form the domestic fireside into an elysium,”’ and 
not because he thought they could compete on even 
terms in the usual activities of men. 

Despite these “buffetings of fate,” the Chief Jus- 
tice was back in Washington in attendance upon 
Court in February, 1832, and daily walked several 
miles to and from the Capitol. In the following 
January his health appeared to be completely re- 
stored. “He seemed,” says Story, with whom he 
messed, along with Justices Thompson and Duval, 
“to revive, and enjoy anew his green old age.” 
This year Marshall had the gratification of receiv- 
ing the tribute of Story’s magnificent dedication 
of his Commentaries to him. With characteristic 
modesty, the aged Chief Justice expressed the fear 
that his admirer had “consulted a partial friend- 
ship farther than your deliberate judgment will ap- 
prove.” He was especially interested in the copy 
intended for the schools, but he felt that “south 
of the Potomac, where it is most wanted it will 
be least used,” for, he continued, “it is a Mo- 
hammedan rule never to dispute with the igno- 
rant, and we of the true faith in the South adjure 
the contamination of infidel political works. It 


220 MARSHALL AND THE CONSTITUTION 


would give our orthodox nullifyer a fever to read 
the heresies of your Commentaries. A whole school 
might be infected by the atmosphere of a single 
copy should it be placed on one of the shelves 
of a bookcase.” 

Marshall sat on the Bench for the last time in 
the January term of 1835. Miss Harriet Marti- 
neau, who was in Washington during that winter, 
has left a striking picture of the Chief Justice as 
he appeared in these last days. “How delighted,” 


« 


she writes, ““we were to see Judge Story bring in 
the tall, majestic, bright-eyed old man, — old by 
chronology, by the lines on his composed face, and 
by his services to the republic; but so dignified, 
so fresh, so present to the time, that no compas- 
sionate consideration for age dared mix with the 
contemplation of him.” 

Marshall was, however, a very sick man, suf- 
fering constant pain from a badly diseased liver. 
The ailment was greatly aggravated, moreover, by 
“severe contusions ’”’ which hereceived whilereturn- 
ing in the stage from Washington to Richmond. 
in June he went a second time to Philadelphia for 
medical assistance, but his case was soon seen to be 
hopeless He awaited death with his usual seren- 
‘ty, and two days before it came he comnased the 


AMONG FRIENDS AND NEIGHBORS 221 


modest epitaph which appeared upon his tomb: 
JOHN MARSHALL, SON OF THOMAS AND MARY MAR- 
SHALL, WAS BORN ON THE 24TH OF SEPTEMBER, 
1755, INTERMARRIED WITH MARY WILLIS AMBLER 
THE 3D OF JANUARY, 1783, DEPARTED THIS LIFE 
THE — DAY oF —, 18—. He died the evening of 
July 6, 1835, surrounded by three of his sons. The 
death of the fourth, from an accident while he was 
hurrying to his father’s bedside, had been kept 
from him. He left also a daughter and numerous 
grandchildren. 

Marshall’s will is dated April 9, 1832, and has 
five codicils of subsequent dates attached. After 
certain donations to grandsons named John and 
Thomas, the estate, consisting chiefly of his portion 
of the Fairfax purchase, was to be divided equally 
among his five children. To the daughter and her 
descendants were also secured one hundred shares 
of stock which his wife had held in the Bank of the 
United States, but in 1835 these were probably of 
little value. His faithful body servant Robin was 
to be emancipated and, if he chose, sent to Liberia, 
in which event he should receive one hundred 
dollars. But if he preferred to remain in the Com- 
monwealth, he should receive but fifty dollars; and 
if it turned out to “be impracticable to liberate 


222 MARSHALL AND THE CONSTITUTION 


him consistently with law and his own inclination,” 
he was to select his master from among the chil- 
dren, “that he may always be treated as a faithful 
meritorious servant.” 

The Chief Justice’s death evoked many eloquent 
tributes to his public services and private excel- 
lencies, but none more just and appreciative than 
that of the officers of court and members of the bar 
of his own circuit who knew him most intimately. 
It reads as follows: 


John Marshall, late Chief Justice of the United States, 
having departed this life since the last Term of the 
Federal Circuit Court for this district, the Bench, Bar, 
and Officers of the Court, assembled at the present 
Term, embrace the first opportunity to express their 
profound and heartfelt respect for the memory of the 
venerable judge, who presided in this Court for thirty- 
five years — with such remarkable diligence in office, 
that, until he was disabled by the disease which re- 
moved him from life, he was never known to be absent 
from the bench, during term time, even for a day, — 
with such indulgence to counsel and suitors, that every 
body’s convenience was consulted, but his own, — with 
a dignity, sustained without effort, and, apparently, 
without care to sustain it, to which all men were solici- 
tous to pay due respect, — with such profound sagac- 
ity, such quick penetration, such acuteness, clearness, 
strength, and comprehension of mind, that in his hand, 
the most complicated causes were plain, the weightiest 


AMONG FRIENDS AND NEIGHBORS = 223 


and most difficult, easy and light, — with such striking 
impartiality and justice, and a judgment so sure, as te 
inspire universal confidence, so that few appeals were 
ever taken from his decisions, during his long adminis- 
tration of justice in the Court, and those only in cases 
where he himself expressed doubt, — with such mod- 
esty, that he seemed wholly unconscious of his own 
gigantic powers, — with such equanimity, such benig- 
nity of temper, such amenity cf manners, that not only 
none of the judges, who sat with him on the bench, but 
no member of the bar, no officer of the court, no juror, 
no witness, no suitor, in a single instance, ever found or 
imagined, in any thing said or done, or omitted by him, 
the slightest cause of offence. 

His private life was worthy of the exalted character 
he sustained in public station. The unaffected simplic- 
ity of his manners; the spotless purity of his morals; 
his social, gentle, cheerful disposition; his habitual self- 
denial, and boundless generosity towards others; the 
strength and constancy of his attachments; his kindness 
to his friends and neighbours; his exemplary conduct in 
the relations of son, brother, husband, father; his numer- 
ous charities; his benevolence towards all men, and his 
ever active beneficence; these amiable qualities shone sc 
conspicuously in him, throughout his life, that, highly 
as he was respected, he had the rare happiness to be yet 
more beloved. 


There is no more engaging figure in American 
history, none more entirely free from disfiguring 
idiosyncrasy, than the son of Thomas Marshall. 


CHAPTER IX 
EPILOGUE 


In the brief period of twenty-seven months follow- 
ing the death of Marshall the Supreme Court 
received a new Chief Justice and five new Asso- 
ciate Justices. The effect of this change in per- 
sonnel upon the doctrine of the Court soon became 
manifest. In the eleventh volume of Peters’s Re- 
ports, the first issued while Roger B. Taney was 
Chief Justice, are three decisions of constitutional 
cases sustaining state laws which on earlier argu- 
ment Marshall had assessed as unconstitutional. 
The first of these decisions gave what was desig- 
nated “the complete, unqualified, and exclusive” 
power of the State to regulate its “internal police” 


‘ 297, 


the right of way over the “commerce clause’’’; 
the second practically nullified the constitutional 
prohibition against “bills of credit” in deference 
to the same high prerogative’; the third curtailed 


t Milton vs. New York, 11 Peters, 102. 
2 Briscoe vs. Bank of Kentucky, 11 Peters, 257. 
224 


EPILOGUE aos 


. 


the operation of the “obligation of contracts” 
clause as a protection of public grants. Story. 
voicing “an earnest desire to vindicate his [Mar- 
shall’s] memory from the imputation of rashness,”’ 
filed passionate and unavailing dissents. With dif- 
ficulty he was dissuaded from resigning from a 
tribunal whose days of influence he thought gone 
by.? During the same year Justice Henry Baldwin, 
another of Marshall’s friends and associates. pub- 
lished his View of the Constitution, in which he 
rendered high praise to the departed Chief Justice’s 
qualifications as expounder of the Constitution. 
“No commentator,” he wrote, “ever followed the 
text more faithfully, or ever made a commentary 
more accordant with its strict intention and lan- 
guage. ... He never brought into action the 
powers of his mighty mind to find some meaning 
in plain words . . . above the comprehension of 
ordinary minds. .. . He knew the framers of the 
Constitution, who were his compatriots,” he was 

* Charles River Bridge Company rs. Warren Bridge Company, 11 
Peters, 420. 

? He wrote Justice McLean, May 10, 1837: “There will not, I fear, 
even in our day, be any case in which a law of a State or of Congress 
will be declared unconstitutional; for the old constitutional doctrines 
are fast fading away.” Life and Letters of Joseph Story, vol. 1, p. 272: 


see also p. 270, for Chancellor Kent’s unfavorable reaction to these 
decisions. 


226 MARSHALL AND THE CONSTITUTION 


himself the historian of its framing, wherefore, as 
its expositor, “he knew its objects, its intentions.” 
Yet in the face of these admissions, Baldwin re- 
jects Marshall’s theory of the origin of the Con- 
stitution and the corollary doctrine of liberal con- 
struction. ‘‘The history and spirit of the times,” 
he wrote, ‘“‘admonish us that new versions of the 
Constitution will be promulgated to meet the 
varying course of political events or aspirations 
of power.” 

But the radical impulse soon spent itself. Chief 
Justice Taney himself was a good deal of a con- 
servative. While he regarded the Supreme Court 
rather as an umpire between two sovereignties than 
as an organ of the National Government for the 
vigorous assertion of its powers, which was Mar- 
shall’s point of view, Taney was not at all disposed 
to disturb the law as it had been declared by his 
predecessor in binding decisions. Then, too, the de- 
velopment of railroading and the beginning of immi- 
gration from Europe on a large scale reawakened 
the interest of a great part of the nation in keeping 
intercourse between the States untrammeled by 
local selfishness; and in 1851 the Court, heeding the 
spirit of compromise of the day, decisively accepted 
for the most important category of cases Marshall’s 


EPILOGUE 227 


principle of the exclusive control of interstate and 
foreign commerce by Congress. * 

Still, until the eve of the Civil War, the theory 
of the Constitution held by the great body of the 
people, North as well as South, was that it was 
a compact of States. Then in December, 1860, 
South Carolina announced her secession from the 
Union. Buchanan’s message of the same month 
performed the twofold service of refuting secession 
on State Rights principles and of demonstrating, 
albeit unwittingly, how impossible it was prac- 
tically to combat the movement on the same prin- 
ciples. Lincoln brought the North back to Mar- 
shall’s position when he remarked in his Inaugu- 
ral Address: “Continue to execute all the express 
provisions of our National Constitution, and the 
Union will endure forever.” 

The Civil War has been characterized as “an 
appeal from the judgments of Marshall to the 


> 


arbitrament of war.” Its outcome restored the 
concept of the National Government as a ter- 
ritorial sovereign, present within the States by 
the superior mandate of the American People, 
and entitled to “execute on every foot of Ameri- 
can soil the powers and functions that belong to 


t Cooley vs. the Board of Wardens, 12 Howard, 299. 


228 MARSHALL AND THE CONSTITUTION 


it.”! These powers and functions are, moreover, 
today undergoing constant enlargement. No one 
now doubts that in any clash between national and 
state power it is national power which is entitled 
to be defined first, and few persons question that 
it ought to be defined in the light of Marshall’s 
principle, that a Constitution designed for ages 
to come must be “‘adapted to the various crises of 
human affairs.” 

It is only when we turn to that branch of Con- 
stitutional Law which defines governmental power 
in relation to private rights that we lose touch with 
Marshall’s principles. As we have seen, he dealt 
in absolutes: either power was given to an un- 
/ limited extent or it was withheld altogether. To- 
day, however, the dominant rule in this field of 
Constitutional Law is the “rule of reason.”” In the 
last analysis, there are few private rights which are 
not subordinate to the general welfare; but, on the 
other hand, legislation which affects private rights 
must have a reasonable tendency to promote the 
general welfare and must not arbitrarily invade the 
rights of particular persons or classes. Inasmuch as 
the hard and fast rules of an age when conditions 
of life were simpler are no longer practicable under 


‘ Justice Bradley in ex parte Siebold, 100 U. S., 371. 


EPILOGUE 229 


the more complex relationships of modern times, 
there is today an inevitable tendency to force 
these rules to greater flexibility.* 

And this difference in the point of view of the 
judiciary connotes a general difference of outlook - 
which makes itself felt today even in that field where 
Marshall wrought most enduringly. The Consti- 
tution was established under the sway of the idea 
of the balance of power, and with the purpose of 
effecting a comproinise among a variety of more 
or less antagonistic interests, some of which were 
\dentified with the cause of local autonomy, others 
of which coalesced with the cause of National Su- 
premacy. The Nation and the States were regard- 
ed as competitive forces, and a condition of ten- 
sion between them was thought to be not only 
normal but desirable. The modern point of view 
is very different. Local differences have to a great 
extent disappeared, and that general interest which 


t Notwithstanding what is said above, it is also true that the 
modern doctrine of “the police power’’ owes something to Mar- 
shall’s interpretation of the “necessary and proper” clause in 
M’Culloch vs. Maryland, which is frequently offered nowadays as 
stating the authoritative definition of ‘‘a fair legislative discretion” 
in relation to private rights. Indeed this ingenious transposition 
was first suggested in Marshall’s day. See Cowen (N. Y.), 585. 
But it never received his sanction and does not represent his point 
of view. 


230 MARSHALL AND THE CONSTITUTION 


is the same for all the States is an ever deepening 
one. The idea of the competition of the States 
with the Nation is yielding to that of their codpera- 
tion in public service. And it is much the same 
with the relation of the three departments of Goy- 
ernment. The notion that they have antagonistic 
interests to guard is giving way to the perception 
of a general interest guarded by all according to 
their several faculties. In brief, whereas it was the 
original effort of the Constitution to preserve a 
somewhat complex set of values by nice differen- 
tiations of power, the present tendency, born of a 
surer vision of a single national welfare, is toward 
the participation of all powers in a joint effort for 
a common end. 

But though Marshall’s work has been superseded 
at many points, there is no fame among American 
statesmen more strongly bulwarked by great and 
still vital institutions. Marshall established judi- 
cial review; he imparted to an ancient legal tradi- 
tion a new significance; he made his Court one of 
the great political forces of the country; he founded 
American Constitutional Law; he formulated, more 
tellingly than any one else and for a people whose 
thought was permeated with legalism, the prin- 
ciples on which the integrity and ordered growth 


EPILOGUE 231 


of their Nation have depended. Springing from 
the twin rootage of Magna Charta and the Dec- 
laration of Independence, his judicial statesman- 
ship finds no parallel in the salient features of its 
achievement outside our own annals. 


BIBLIOGRAPHICAL NOTE 


Att accounts of Marshall’s career previous to his ap- 
pointment as Chief Justice have been superseded by 
Albert J. Beveridge’s two admirable volumes, The Life 
of John Marshall (Boston, 1916). The author paints 
on a large canvas and with notable skill. His work is 
history as well as biography. His ample plan enables 
him to quote liberally from Marshall’s writings and 
from all the really valuable first-hand sources. Both 
text and notes are valuable repositories of material, 
Beveridge has substantially completed a third volume 
covering the first decade of Marshall’s chief-justiceship, 
and the entire work will probably run to five volumes. 

Briefer accounts of Marshall covering his entire career 
will be found in Henry Flanders’s Lives and Times of the 
Chief Justices of the Supreme Court (1875) and Van 
Santvoord’s Sketches of the Lives, Times, and Judicial 
Services of the Chief Justices of the Supreme Court (1882). 
Two excellent brief sketches are J. B. Thayer’s John 
Marshall (1901) in the Riverside Biographical Series, 
and W. D. Lewis’s essay in the second volume of The 
Great American Lawyers, 8 vols. (Philadelphia, 1907), 
of which he is also the editor. The latter is partic- 
ularly happy in its blend of the personal and legal, 
the biographical and critical. A. B. Magruder’s John 
Marshall (1898) in the American Statesman Series falls 

233 


234 BIBLIOGRAPHICAL NOTE 


considerably below the general standard maintained 
by that excellent series. 

The centennial anniversary of Marshall’s accession to 
the Supreme Bench was generally observed by Bench 
and Bar throughout the United States, and many of the 
addresses on the great Chief Justice’s life and judicial 
services delivered by distinguished judges and lawyers 
on that occasion were later collected by John F. Dillon 
and published in John Marshall, Life, Character, and 
Judicial Services, 3 vols. (Chicago, 1903). In volume 
xu of the Green Bag will be found a skillfully con- 
structed mosaic biography of Marshall drawn from 
these addresses. 

The most considerable group of Marshall’s letters 
yet published are those to Justice Story, which will be 
found in the Massachusetts Historical Society Proceed- 
ings, Second Series, volume xiv, pp. 321-60. These 
and most of the Chief Justice’s other letters which have 
thus far seen the light of day will be found in J. E. 
Oster’s Political and Economic Doctrines of John Mar- 
shall (New York, 1914). Here also will be found a copy 
of Marshall’s will, of the autobiography which he pre- 
pared in 1818 for Delaplaine’s Repository but which was 
never published there, and of his eulogy of his wife. 
The two principal sources of Marshall’s anecdotes are 
the Southern Literary Messenger, volume 0, p. 181 ff., and 
Henry Howe’s Historical Collections of Virginia (Charles- 
ton, 1845). Approaching the value of sources are Joseph 
Story’s Discourse upon the Life, Character, and Services 
of the Hon. John Marshall (1835) and Horace Binney’s 
Eulogy (1835), both of which were pronounced by per- 
sonal friends shortly after Marshall’s death and both 
of which are now available in volume 11 of Dillon’s 


BIBLIOGRAPHICAL NOTE 235 


compilation, cited above. The value of Marshall’s Life 
of Washington as bearing on the origin of his own point 
of view in politics was noted in the text (Chapter VIII). 

Marshall’s great constitutional decisions are, of course, 
accessible in the Reports, but they have also been as- 
sembled into a single volume by John M. Dillon, John 
Marshall; Complete Constitutional Decisions (Chicago, 
1903), and into two instructively edited volumes by 
Joseph P. Cotton, Constitutional Decisions of John Mar- 
shall (New York, 1905). Story’s famous Commentaries 
on the Constitution gives a systematic presentation 
of Marshall’s constitutional doctrines, which is fortified 
at all points by historical reference; the second edition 
is the best. For other contemporary evaluations of 
Marshall’s decisions, often hostile, see early volumes 
of the North American Review and Niles’s Register; also 
the volumes of the famous John Taylor of Caroline. A 
brief general account of later date of the decisions is to 
be found in the Constitutional History of the United 
States as Seen in the Development of American Law (New 
York, 1889), a course of lectures before the Political 
Science Association of the University of Michigan. , De- 
tailed commentary of a high order of scholarship is 
furnished by Walter Malins Rose’s Notes to the Law- 
yers’ Edition of the United States Reports, 13 vols. 
(1899-1901). The more valuable of Marshall’s de- 
cisions on circuit are collected in J. W. Brockenbrough’s 
two volumes of Reports of Cases Decided by the Hon. John 
Marshall (Philadelphia, 1837), and his rulings at Burr’s 
Trial are to be found in Robertson's Reports of the Trials 
of Colonel Aaron Burr, 2 vols. (1808). 

Marshall’s associates on the Supreme Bench are 
pleasingly sketched in Hampton L. Carson’s Supreme 


236 BIBLIOGRAPHICAL NOTE 


Court of the United States (Philadelphia, 1891), which 
also gives many interesting facts bearing on the history 
of the Court itself. In the same connection Charles 
Warren’s History of the American Bar (Boston, 1911) is 
also valuable both for the facts which it records and for 
the guidance it affords to further material. Of biog- 
raphies of contemporaries and coworkers of Marshall, 
the most valuable are John P. Kennedy’s Memoirs of 
the Life of William Wirt, 2 vols. (Philadelphia, 1860); 
William Wetmore Story’s Life and Letters of Joseph 
Story, 2 vols. (Boston, 1851); and William Kent’s 
Memoirs and Letters of James Kent (Boston, 1898). 
Everett P. Wheeler’s Daniel Webster the Expounder of 
the Constitution (1905) is instructive, but claims far too 
much for Webster’s influence upon Marshall’s views. 
New England has never yet quite forgiven Virginia for 
having had the temerity to take the formative hand in 
shaping our Constitutional Law. The vast amount of 
material brought together in Gustavus Myers’s History 
of the Supreme Court (Chicago, 1912) is based on purely 
ex parte statements and is so poorly authenticated as to 
be yalueless. He writes from the socialistic point of 
view and fluctuates between the desire to establish the 
dogma of “class bias”’ by a coldly impartial examination 
of the “‘facts”’ and the desire to start a scandal reflecting 
on individual reputations. 

The literature of eulogy and appreciation is, for all 
practical purposes, exhausted in Dillon’s collection. 
But a reference should be made here to a brief but per- 
tinent and excellently phrased comment on the great 
Chief Justice in Woodrow Wilson’s Constitutional Gov- 
ernment in the United States (New York, 1908), pp. 158-9. 


INDEX 


Adams, John, and “midnight 
judges,’ 22-23; appoints 
Marshall Chief Justice, 23-24, 
51; Marshall defends, 48 

Adams, J. Q., Memoirs, cited, 71 
(note); record of Giles’s views 
on impeachment, 74-75; on 
Randolph, 81-82; quoted, 126 

Addison, Alexander, 59 

Alien and Sedition laws, 47; 
see also Sedition Act 

Ambler, Mary, Marshall marries, 
30; death, 217-18 

Articles of Confederation, 3-4 


Baldwin, Henry, View of the Con- 
stitution, praise of Marshall, 
225-26 

Bank, U. S., 124-26; Marshall 
and, !214-15; see also M’Cul- 
loch vs. Maryland 

Barbecue Club, 202-04 

Barlow, Joel, 208-09 

Barron vs. Baltimore, 191 

Bartlett, attorney in Dartmouth 
College case, 159, 163 

Benton, T. H., Abridgment of the 
Debates of Congress, cited, 66 
(note) 

Beveridge, A. J., The Life of John 
Marshall, quoted, 31, 43, 201 
Blair, Rev., and anecdote of 

Barbecue Club, 203-04 

Blair, Justice John, of Virginia, 

15, 19 


Blennerhassett, Harman, and 
Burr, 87, 89, 105; describes 
Eaton, 92 


Blennerhassett’s Island, 87, 103 

Bollmann, Erick, witness at 
Burr’s trial, 92-93, 94, 108, 
109 

Botts, Benjamin, defends Burr, 
92 

Bradley, Justice J. P., cited, 144 
(note); quoted, 227-28 

Breckinridge, John, of Kentucky, 
61, 62 

Briscoe vs. Bank of Kentucky, 
191 

Brown, Francis, President of 
Dartmouth College, 164 


Brown vs. Maryland, 142-44, 
171, 190 

Buchanan, James, and _seces- 
sion, 227 


Burr, Aaron, and Marshall, 50; 
Vice-President, 76; favors to, 
82-83; “‘conspiracy”’ and trial, 
86 et seq. 


Calder vs. Bull, 150, 154 

Calhoun, J. C., and state sover- 
eignty, 192 

Callender, J. T., tried for sedi- 
tion, 57, 73, 79 

Campbell, clergyman, 
John Marshall, 28 

Campbell, lawyer of Richmond, 
32, 78 

Charles River Bridge Company 
vs. Warren Bridge Company, 
225 (note) 

Chase, Justice Samuel, of Mary- 
land, 19, 57, 71-72, 150; im- 
peachment, 72, 73-83, 112-13 


teaches 


237 


238 


Cherokee Nation vs. Georgia, 193 

Chisholm vs. Georgia, 18 

Cincinnati, Burr goes to, 87 

Civil War, 226 

Clay, Henry, Marshall and, 214 

Clinton, De Witt, Governor of 
New York, 164 

Cohens vs. Virginia, 179 

Commerce, Marshall’s opinion 
of congressional control of, 
139-42; see also Congress 

Congress, and Supreme Court, 
7, 12-13; impeachments, 71— 
83; control of commerce, 139- 
143, 145, 171, 226 

Connecticut, statute excluding 
Fulton-Livingston vessels, 136 

Constitution, relation of Su- 
preme Court to, 7-13; prin- 
ciples from Marshall’s inter- 
pretation of, 144-45 

Constitutional Convention and 
state coercion, 4-5 

Contracts, sanctity of, 147 et 
seq. 

Cooley vs. the Board of Wardens, 
227 

Cooper, Thomas, tried for sedi- 
tion, 57 

Corn Tassel, Cherokee Indian, 
193 

Craig vs. Missouri, 192-93 

Cumberland Road Bill vetoed, 
188 

Cushing, Justice William, of 
Massachusetts, 15, 17, 116 

Cushing, Mrs., wife of Justice, 17 


Dartmouth College vs. Wood- 
ward, 124, 154 et seq. 

Dickinson, John, of Delaware, 
on removal of judges, 6; Jef- 
ferson writes to, 23; President 
of Pennsylvania, 59 (note) 

Dodd, W. E., Chief Justice Mar- 
shall and Virginia, cited, 174 
(note) 

Duval, Justice Gabriel, 219; and 
Dartmouth College case, 163 


INDEX 


Eaton, William, witness at Burr’s 
trial, 92, 101 

Elliot, J., Debates, 36, 38 

Ellsworth, Oliver, 76; on state 
coercion, 5; author of Judici- 
ary Act (1789), 14; Chief 
Justice, 20; resigns, 23, 175 

Emmet, T. A., lawyer of New 
York, 136 

Enquirer, Richmond, 183 

Espionage Act of June 15, 1917, 
110 

Evans, Charles, Report, cited, 
71 (note) 


Federalist, 5, 18, 15, 18, 124, 
175 

Fletcher vs. Peck, 151-54, 159, 
166 

Fries, John, tried for treason, 57, 
73, '79 

Fries’s Rebellion, 21 

Fulton, Robert, steamboat grant 
to, 135 


Gallatin, Albert, 48, 82 

Georgia, land grant case, 151-54; 
controversy with Supreme 
Court, 193-94 

Gerry, Elbridge, 45 

Gibbons vs. Ogden, 130, 135-42, 
145, 171, 189 

Giles, W. B., of Virginia, 62, 
74-75, 78, 82 

Goodrich, C. A., Professor of 
Yale, 162 (note) 

Green vs. Biddle, 184, 188 

Griffin, Judge, at Burr’s trial, 95 


Hamilton, Alexander, 13, 36, 45, 
50, 86, 121, 122; and U. S. 
Bank, 124-26 

Harding, Chester, quoted, 204— 
205 

Hay, George, and Sedition Act, 
79; U. S. District Attorney, 
91, 98, 113-14 

Hayes, Samuel (or Haze), 155-56 

Heath testifies against Chase, 79 


INDEX 


Henry, Patrick, at Virginia 
Convention, 37, 38; supports 
Marshall, 48 

Holmes, John, and Dartmouth 
College case, 163 

Holmes, Justice O. W., on Mar- 
shall, 121 

Hopkinson, Joseph, 
Chase, 80; in Bank case, 128; 
and Dartmouth College case, 
162 

Hunter vs. Martin, 174-77, 179 


Impeachments, Pickering, 71- 
73; Chase, 73-83; of Penn- 
sylvania State Supreme Court 
judges, 84 

Indians, and Dartmouth College. 
155, 158; and Georgia, 193 


defends | 


| 


Tredell, Justice James, of North | 


Carolina, 15 


Jackson, Andrew, and Burr, 92; 
President, 191; and contro- 
versy between Supreme Court 
and Georgia, 194 


Jay, John, of New York, Chief | 


Justice, 15-16, 19-20, 196 

Jefferson, Thomas, 25, 28, 166; 
elected President, 22; and the 
Judiciary, 23, 53, et seq., 182- 
183; Governor of Virginia, 30; 
aad Marshall, 46, 50, 55, 94— 
95, 96, 97-98, 108, 120; inau- 
guration, 55-56; Marbury vs. 
Madison, 64-66; and Martin, 
77, 78; and Burr, 82, 88-89, 
90, 111, 113; and Johnson, 
115; and U. S. Bank, 125; on 
Dartmouth College question, 
157; criticism of Marshall’s 
Life of Washington, 208-09 

Johnson, Allen, Jefferson and 
his Colleagues, cited, 87 (note) 

Johnson, R. M., of Kentucky, 
185 

Johnson, Justice William, 115, 
151, 164 

Jones, Walter, in Bank case, 128 


239 


Judiciary, establishment, 1 et 
seq.; removal of judges, 6; 
Jefferson’s war on, 53 e¢ seq. 

Judiciary Act (1789), 14-16, 39, 
192-93; Act (1801), 22, 60-63, 
71 


Kent, Chancellor James, of New 
York, 137, 138, 164, 225 (note) 

Kentucky, anti-judicial move- 
ment, 58, 184-86, 187, 188 

Kentucky Resolutions, 22, 127, 
177 

King, Rufus, on John Marshall, 
44 


Law Journal, Hall’s, 183 

Lee, R. E., 25 

Lewis, attorney for Fries, 79 

Lincoln, Abraham, and nation- 
alism, 226 

Livingston, Justice Brockholst, 
164 

Livingston, R. R., steamboat 
grant to, 135 

Livingston family of New York, 
16 

Livingston vs. Van Ingen, 137 
(note) 

Lodge, H. C., on Marshall, 121 


M’Culloch vs. Maryland, 124- 
135, 143. 182, 184, 190 

McLean, Justice John, letter of 
Story to, quoted, 225 (note) 

Madison, James, 82; on state 
coercion, 5; on state courts as 
national tribunals, 7; in Vir- 
ginia Legislature, 34; Virginia 
Convention, 36, 37; and U. S. 
Bank, 126; Journal, cited, 175 

Marbury vs. Madison, 64-71 

Marsh, Charles, 164 

Marshall, John, 18, 20, 22; and 
American  constitutionalism, 
2-3; appointed Chief Justice, 
24, 51; born (1755), 25; early 
life, 25 et seg.; education, 27- 
28, 30; and the Revolution, 


240 


Marshall, John—Continued 
29-30; marriage (1783), 30; 
practices law at Richmond, 
31-32; in Virginia Legisla- 
ture, 33; and adoption of 
Constitution, 35-38; Wirt’s 
description of, 39-42: per- 
sonal! characteristics, 42; 
Federalist leader in Virginia, 
43; and Jay Treaty, 43-44, 
48; purchases Fairfax estate, 
44-45; “X.Y.Z.” mission, 45- 
46, 49; elected to Congress, 
46-48; and Jefferson, 46, 50, 
55, 94-95, 96, 97-98, 108, 
120; in Washington, 53-54; 
first constitutional case, 64— 
71; and trial of Burr, 93 et 
seq.; and nationalism, 121 
et seq., 147; interpretation of 
Constitution, 144-45; and 
sanctity of contracts, 147 et 
seg.; and State Rights, 173 
et seq.; as private citizen, 198 
et seg.; aS hero of anecdote, 
205-06; religious bent, 206; 
Life of Washington, 34 (note), 
208-10; correspondence, 211— 
213; and politics, 213-14; on 
method of electing President, 
214-15; and U.S. Bank, 215- 
216; illness, 216-17; death of 
wife, 217-18; last years, 219- 
220; composes epitaph, 221; 
death, 221; will, 221-22; 
tribute, 221-22; Baldwin on, 
925-26; bibliography, 233-36 

Marshall, Thomas, father of 
John Marshall, 25, 27 

Martin, Luther, of Maryland, 
on authority of federal legisla- 
tion, 9; defends Chase, 76-77; 
80-81; defends Burr, 92, 96; 
in Bank case, 128 

Martin vs. Hunter’s Lessee, 177— 
182 

Martineau, Harriet, 
Marshall, 220 

Maryland, attitude toward Judi- 


describes 


INDEX 


ciary, 58; and U.S. Bank, see 
M’Culloch vs. Maryland 
Mason, George, 38 
Mason, Jeremiah, 158, 162 


Mexico, “Burr's Conspiracy”’ 
against, 99 
Morgan, General, witness at 


Burr’s trial, 102 
Morris, Gouverneur, quoted, 61 
Morris, Robert, and Marshall, 


4S 
Munford, G. W., The Two Par. 
sons, cited, 204 (note) 
Murch, Rachel, 155 


Nashville (Tenn.), Burr goes to, 
87 
Natchez, Burr goes to, 87, 89 
Nationalism, 121 et seq., 227 
Nereide, case of the, 118 (note) 
New Jersey, statute excluding 
Fulton-Livingston vessels, 136 
New Orleans, Wilkinson at, 89, 
91; and Burr, 99 
New York, and 
case,” 136-42 
New York City, Supreme Court 


“Steamboat 


in, 16 

Newcastle (Del.), Chase at, 73 

Nicholas, W. C., at Virginia 
Convention, 37 

Nicholson, Joseph, and impeach- 
ment, 78; recall for Senators, 
84 

Nullification, 194; Marshall and, 
214 


Oakley, T. J., counsel for Ogden, 
136 J 

Ogden vs. Saunders, 190 

Ohio, anti-judicial movement 
in, 184 

Osborn vs. United States Bank, 
189-90 


Parton, James, Life and Times 
of Aaron Burr, quoted, 99-100 

Passmore, ‘Thomas, punished 
for contempt-of court, 60 


INDEX 


Pendleton, Edmund, lawyer of 
Richmond, 32 

Pennsylvania, attitude toward 
Judiciary, 58, 84; protests 
Marshall's decision, 119 

Philadelphia, Supreme Court at, 
16; impeachment of judges at, 
84; Burr goes to, 87 

Pickering, Judge, of New Hamp- 
shire, impeachment, 71, 72-73 

Pinckney, C. C., on “X-Y.Z.” 
mission, 45 

Pinkney, William, of Maryland, 
greatest lawyer of his day, 
117-18; in Bank case, 128— 
129; im Dartmouth College 
case, 165 

Plumer, Wiliam, Governor of 
New Hampshire, 156-58 

Providence Bank vs. Billings, 191 


Raleigh (N. C.), Marshall hoids 
court at, 199 


Randolph, Edmund, 25; defends 


Burr, 92 

Randolph, John, 25, 32, 37, 54, 
62, 90, 124; on Judiciary, 23; 
on Marshall, 52; and impeach- 
ment of Chase, 75, 78, 81-82; 
proposes amendment to Con- 
stitution, S3-S4; at Burr’s 
trial, 95 

Reed, T. B., 169 

Revolution, Marshall and, 29-30 

Richardson, Chief Justice, 159 

Richmond (Va.), Marshall prac- 
tices law at, 31; Burr’s trial 


at, 86 ef seq-; Marshall holds 
court at, 199 

Roane, Spencer, of Virginia, 
174-78, 183 

Robertson, Reports, cited, 109 
(note) 


Robins, Jonathan, British fugi- 
tive from justice, 48 

Rodney, C. A., 78, 84 

Rowan, Senator, of Kentucky, 
187 

Rutledge, John, of South Caro- 


241 


Ima, on state courts as na- 
tional tribunals, 6-7; associate 
justice, 15 


St. Louis, Burr goes to, 87 

Satterlee vs. Matthewson, 191 

Schooner Exchange vs. McFad- 
don ef al, 118 (note) 

Sedgwick, Theodore, on Mar- 
shall, 49-51 

Sedition Act (1798), 21, 49, 57 

Shays’s Rebellion (1786), 34 

“Shockoe Hill,” Marshall’s home 
at Richmond, 201 

“Sidney, Algernon,” pseudonym 
of Roane, 183 

Smith, Jeremiah, 158-59, 163 

South Carolia, nullification, 
194; Jackson’s proclamation 
to, 214; secession, 227 

Spam, “Burrs Conspiracy” 
against, 89 

State Rights, 7, 173, ef seq. 

“Steamboat case,” see Gibbons 
os. Ogden 

Story, Justice Joseph, 109, 118, 
220: Discourse, cited, 34 (note) ; 
and Marshall, 116, 150-51 
(mote), 183, 194, 195, 211, 
216, 219, 225; quoted, 129, 
201; Dartmouth College case, 
163, 166; answer to Roane, 
177-79 

Sturges ts. 
184, 190 

Sullivan, attorney in Dartmouth 
College case, 159, 163 

Supreme Court, relation to Con- 
stitution, 7-13; powers, 11; 
establishment, 12-13, 14; origi- 
nal bench, 15; in New York 
City, 16; in Philadelphia, 16; 
pioneer work, 17-19; need of 
leadership, 19-20; Act of 
Feb. 13, 1801, 22, 60-63, 71; 
in Washington, 54; defended 
by Virginia Assembly, 119- 
120; bill for enlargement, 186— 
187; controversy with Geor 


Crowishield, 124, 


242 


Supreme Court—Continued 
gia, 193-94; number of cases 
during Marshall’s term of 
office, 198; changes on bench, 
223 

Swartwout, Samuel, 93, 94, 108, 
109 


Taney, R. B., Chief Justice, 118, 
224, 226 

Taylor, John, of Caroline, 60, 192 

Thayer, J. B., John Marshall, 
quoted, 202-04 

Thompson, Justice Smith, 219 

Ticknor, George, describes Pink- 
ney, 117-18 

Tocqueville, Alexis de, opinion 
of Supreme Court, 196-97 

Todd, Justice Thomas, 163 

Transportation, 188-89 

Truxton, Commodore Thomas, 
92, 102 


United States vs. Peters, 118 


Vincennes, Burr goes to, 87 

Virginia, plan before Constitu- 
tional Convention, 8; Con- 
vention, 35-38; defends Su- 
preme Court, 119-20; and U.S. 
Bank, 216 

Virginia Resolutions, 22, 
176, 177 


127, 


Wakefield (Ala.), Burr captured 
at, 90 

Ware vs. Hylton, 44 

Warren, Charles, 
(note) 

Washington, Justice Bushrod, 
115, 161, 163, 166, 190, 208 


cited, 185 


INDEX 
| Washington, George, Marshall 


and, 26-27, 34, 46; Marshall’s 
Life of, 34 (note), 208-10 

Washington (D. C.), 53; Capitol, 
54; Burr goes to, 87 

Watson vs. Mercer, 191 ; 

Webster, Daniel, 29; and Bank 
case, 128; Gibbons vs. Ogden, 
138; Dartmouth College case, 
159, 160-61, 163 

Wentworth, John, Governor of 
New Hampshire, 155 

Wheelock, Rev. Eleazar, of 
Connecticut, 155 

Wheelock, Dr. John, son of Elea- 
zar Wheelock, 156 

Whisky Rebellion (1794), 21 

Wickham, John, of Richmond, 
32, 92, 202, 203-04 

Wilkinson, James, 113; Mar- 
shall’s letter to, 35; military 
commandant in Louisiana 
Territory, 82; and Burr, 88, 
93, 95; at New Orleans, 89, 


91 

William and Mary College, 30 

Wilson, Justice James, of Penn- 
sylvania, 15, 36 

Wilson vs. Blackbird Creek 
Marsh Company, 191 

Wirt, William, Letters of the 
British Spy, quoted, 39-42; 
at Burr’s trial, 91, 96-97, 102, 
104-05, 110; Bank case, 128; 
Gibbons vs. Ogden, 135-36; 
Dartmouth College case, 162 

Woodward, W. H., 158 

Worcester vs. Georgia, 193-94 

Wythe, George, 30, 32 


“X.Y.Z.” mission, 45-46 


DOO 


00968880$ 


